Queen’s Speech

Lord Thomas of Gresford Excerpts

Thursday 12th May 2022 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I want to take up the last point made by the noble Baroness, Lady Goudie, about the protocol in Northern Ireland. Page 447 of the 2011 edition of Erskine May states:

“By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside government. This convention is referred to in paragraph 2.13 of the Ministerial Code.”


In a complete reversal of that convention, the current Attorney-General has announced in the Times today that she has been advised that legislation to override the Northern Ireland protocol is legal because the EU’s implementation of the protocol is disproportionate and unreasonable. That is no doubt intended to trigger and justify the Brexit freedom Bill that is part of the Government’s programme. The public are entitled to know who gave that advice and what the standing of that person is, whether a Civil Service lawyer employed as a member of her staff or specialist counsel. In either event, the Attorney-General gives political cover to her advisers and takes the responsibility. She cannot get away with a breach of the convention by saying, “It wasn’t me, guv”.

The charge that the EU’s implementation of the protocol is disproportionate and unreasonable is of course pure Lewis Carroll; like the rest of this Government, it is Boris through the looking glass. Far from being intransigent, the EU has sought to keep Boris to his promises. He signed the deal. Everything was “oven ready”. Last October, Maroš Šefčovič, the EU negotiator, put forward four papers with proposals to mitigate some of the practical problems that have arisen. Those have been rejected out of hand. He has indicated that he is open to further talks.

The truth is that this Government have deliberately misled the public about the meaning of the protocol. I shall give a clear example. The Government have suggested almost from the beginning that Article 16 provides a mechanism for the UK to walk away from the protocol. “Invoke Article 16!” is the cry. But Article 16 is a commonplace dispute resolution mechanism providing that, in the event of difficulties, one or other of the parties may suspend the operation of the protocol for a temporary period in order to remedy a precise situation by way of agreed measures—measures that will least disturb the wider operation of the protocol. If invoked, Article 16 does not blow up the protocol; it continues to be in force. It is not an escape hatch.

Yet this Government’s rhetoric has misled the main unionist party into fighting an election last week in Northern Ireland on a totally false basis, and to maintain its intransigence even now after it has suffered a historic defeat. In the face of that, the Attorney-General is advising that an Act of Parliament pushed through by a Conservative majority can break treaty obligations undertaken and recognised in international law. The sovereignty of this Parliament depends upon the rule of law, and the doctrine of sovereignty cannot possibly justify unlawful acts.

Noble Lords should not take it from me. When he resigned last September, the noble and learned Lord, Lord Keen of Elie, an exceptionally experienced and competent lawyer—said to be the best in Scotland, or at least the most expensive—said in his resignation letter:

“Over the past week I have found it increasingly difficult to reconcile what I consider to be my obligations as a Law Officer with your policy intentions with respect to the”


internal market Bill.

“I have endeavoured to identify a respectable argument for the provisions”


in question

“but it is now clear that this will not meet your policy intentions.”

Sir Jonathan Jones, the chief government lawyer, had already resigned for the same reason. The noble Lord, Lord Wolfson of Tredegar, has 50 more reasons—in the Covid tickets issued today—for his resignation last month. He said then that

“the scale, context and nature”

of the Covid breaches in government was

“inconsistent with the rule of law”.

The Attorney-General is embarked on a course which can lead only to lengthy proceedings once more in the Supreme Court. When the Government lose, no doubt they will squeal, as they have in the past, that the judiciary is getting involved in politics. Protecting the rule of law is not politics. The Lord Chancellor swore to protect the rule of law on his appointment, and the Attorney-General herself swore that she would

“duly and truly minister The Queen’s matters and sue The Queen’s process after the course of the Law, and after my cunning”.

On 17 January 2019, I said that Brexit would lead to the breaking-up of the United Kingdom, and I repeated the point in September 2019. If the Government continue in their confrontational way to destroy the protocol, I fear that that is precisely what will happen.