Rule of Law

Michael Ellis Excerpts

Wednesday 7th October 2020 Westminster Hall

[The Solicitor General (Michael Ellis)]

It is a pleasure, as ever, to be the Minister here at Westminster Hall. I thank the hon. Member for Kirkcaldy and Cowdenbeath (Neale Hanvey) for raising this issue and I congratulate him on securing the debate.

On the rule of law, the freedoms and protections that we all enjoy are crucial. That is an important constitutional principle. It demands equality before the law. It demands access to independent and impartial justice, a Government subject to the law, and law that is clear, unambiguous and concise. The duty of the Law Officers of the Crown is, at least in part, to ensure that the Government act lawfully at all times—that is, that Ministers of the Crown and civil servants act in accordance with the law.

As the hon. Gentleman has made clear, his reason for requesting the debate today was not so much for a general discussion on the rule of law—important though that is—but about the very specific provisions of the United Kingdom Internal Market Bill. I will say a few words about the Bill and the rule of law. The Bill that the Government tabled is clear, and the Government have been clear throughout that they are acting in full accordance with UK law and the UK’s constitutional norms, which have been an example and an exemplar around the world for centuries. The Bill is currently being considered in the other place, having comfortably passed Third Reading in the House of Commons by 340 votes to 256.

Before I move on to legal aspects of the Bill, I note that there will be no change to the powers that the devolved Administrations already have as a result of it. The vast majority of powers with devolved competences returning from Brussels, as they will do from 1 January, will go straight to Holyrood or Stormont or Cardiff Bay. Those include, for example, agricultural measures, air quality—very important—and energy efficiency of buildings, and also elements of employment law. All those areas will go from Brussels straight to the devolved competences. That will mean that the Scottish Parliament, the Welsh Parliament and the Northern Ireland Assembly, which are already among the most powerful devolved Administrations anywhere in the world, will have even more powers. The hon. Gentleman should be delighted by that.

Returning to the rule of law, this House has extensively debated what are now clauses 44, 45 and 47 of the Bill and the interaction of those clauses with the UK’s international law obligations. The Government have explained why the inclusion of those clauses are the actions of a responsible Government to provide a safety net. As I speak, our UK representatives are working in the Joint Committee to try to resolve these difficulties, but, as a responsible Government and a Government for the whole Union of the United Kingdom of Great Britain and Northern Ireland, we must prepare. We have a duty to prepare for all eventualities. We cannot allow the peace process, or the UK’s internal market, to inadvertently be compromised by unintended consequences either of the Northern Ireland protocol in the withdrawal agreement, or anything else. We need an insurance policy. We need a safety net to make sure that our Union—this precious Union—is not broken apart by these agreements.

Protecting the Union is the highest priority. To provide that safety net, the Government considered it appropriate to ask Parliament to provide a means of addressing these issues if the genuine and earnest attempt by the UK’s negotiating team to resolve these conflicts does not succeed. Providing that safety net reflects the difficult and highly exceptional circumstances in which we find ourselves, because we cannot guarantee the result of Joint Committee negotiations. It is, therefore, the only way of ensuring the effectiveness of other more fundamental provisions of the Northern Ireland protocol. These provisions guarantee Northern Ireland’s constitutional status within this kingdom under the Belfast Agreement, and guarantee that Northern Ireland would be part of the United Kingdom’s customs territory. Left to its own devices, and without the Joint Committee to iron out the creases, these inconsistencies would only get worse over time. It may be that the Joint Committee is able to resolve matters, but we must set up these legislative safety nets just in case.

It goes without saying that this does not change the key principle that continues to guide the UK’s approach to international relations and international law. We remain a state that accepts that we are obliged to discharge our treaty obligations in good faith. Our word is our bond. Other sovereign states who deal with us know that. They know it very well, they respect it, and they act accordingly, as in the case of Japan, which recently concluded a free trade agreement with us. There is also an understanding around the world—the Foreign Secretary alluded to it—

[Neale Hanvey]

Will the hon. Gentleman give way?

[The Solicitor General]

I will just finish my sentence. There is an understanding that decoupling from the European Union is a unique—indeed, unprecedented—situation with the added complexity of the peace process and Northern Ireland, and the unstable political landscape that prevailed before the last election. In the difficult and highly exceptional circumstances in which we find ourselves we must, therefore, consider the fundamental principle of parliamentary sovereignty.

I have not been given an awful lot of time, but I must just say that the principle of parliamentary sovereignty means that it is entirely constitutional for Parliament to enact legislation even if provisions within that legislation, once commenced, would affect the UK’s treaty obligations. I will just make this point: section 38 of the European Union (Withdrawal Agreement) Act 2020 reiterated, in terms, that parliamentary supremacy “subsists” notwithstanding the provisions of the withdrawal agreement with express reference to direct effect, the very thing that may potentially be disapplied here. In other words, Parliament had already prepared for that eventuality. It is there in black and white in section 38.

In the United Kingdom, treaty obligations only become binding in domestic law to the extent that they are enshrined in domestic legislation. Whether to enact or repeal legislation, and the content of that legislation, is for this Parliament and for this Parliament alone. It is a dualist approach. It is not uncommon, and it is not rare. In fact, it is shared by Canada, Australia and New Zealand. Parliamentary scrutiny of the United Kingdom Internal Market Bill so far has served to reinforce Parliament’s central role in the UK’s constitution.

In the last minute that I have, I wanted to reiterate this point: other states known for upholding the rule of law have passed domestic legislation that ran contrary to their treaty obligations. For example, in 2018 the Canadian Government introduced domestic legislation to legalise cannabis. That was in breach of specific provisions of the existing treaty obligations under three United Nations narcotics conventions. The Canadian Government acknowledged the breach, but they stated that their approach was still consistent with the overarching goal of those conventions. Debates such as this are an important opportunity to explain how the Government are upholding the rule of law while making provision for the internal market in the UK and retaining the ability to act decisively in the interest of the whole United Kingdom following our departure from the European Union earlier this year, so I thank the hon. Member for Kirkcaldy and Cowdenbeath for raising the issue today.

Motion lapsed (Standing Order No. 10(6))