European Union (Withdrawal Agreement) Bill — House of Lords, 2020-01-16
Topic: International Affairs
William John Lawrence Wallace (Liberal Democrats, Centre to centre-left): My Lords, Clause 38 is purely declaratory: it has no effect whatsoever, except to appease the appetite of the hard ideologues on the Conservative right. The Select Committee on the Constitution notes explicitly that "this Clause has no legal effect" Its opening phrase, "It is recognised that the Parliament of the United Kingdom is sovereign", is poorly drafted. It does not say who recognises it, or what effect that might conceivably have. It ought, at least, be an active declaration of the principle of parliamentary sovereignty The model for such a declaration was, of course, the ultimate Henry VIII clause in the Statute in Restraint of Appeals 1532, which asserts that, "this realm of England is an empire" It did not surprise me when I checked the date of that statute on Wikipedia to find an accompanying side reference to Sir John Redwood calling for the full restoration of our imperial sovereignty by excluding any appeals to any continental court. This clause is about the myths of English identity and history far more than about current practice The foreign appeals which the 1532 Act were restraining were to the Pope in Rome, rather than to any political institution. It has often struck me as odd and eccentric that several of the most ardent English nationalists and Brexiteers are right-wing Catholics, some of them converts, who regard the current Pope critically as tending towards a dangerous liberalism rather than the dogmatic orthodoxy that they prefer. They have nevertheless embraced an English doctrine which is rooted in our Protestant Reformation and its rejection of the universalism of the Catholic Church Since the 16th century, the doctrine of sovereignty has evolved a great deal and been the subject of a great deal of scholarship, some of which I had to teach when a university teacher. As Dutch, Danish, English and other lawyers have argued, national sovereignty is embedded in a framework of international law, which is necessary to enable trade and peaceful interchange among nation states. Under our system of parliamentary sovereignty, trade agreements and treaties have to be transposed into domestic law, but Parliament accepts that it cannot renegotiate what the Government have agreed and that international treaties therefore limit absolute parliamentary sovereignty. That is why it is inconsistent with any coherent doctrine of parliamentary sovereignty for a Government to neglect to carry Parliament with them as they negotiate major treaties which have significant implications for domestic law and domestic economic life International law and domestic law—as the Minister who is to answer knows extremely well—are closely intertwined. This Conservative Government, like their predecessors, stress the depth of their commitment to the legal, institutionalised international order. As the ideologues on the Conservative Benches rejected the constraints of European Union law, they will still be hemmed in by wider international commitments on human rights, standards, aviation safety, environmental law, shipping, data exchange and a great deal more Purists within the United States have gone further than English nationalists and argued that the perfection of the American constitution and the democracy it encapsulates must override the constraints of international law and treaties. Justice Antonin Scalia, appointed by President Reagan to the US Supreme Court, explicitly argued this exceptionalist view that international law could in no way override American law but, so far as I know, no right-wing English lawyer has gone quite so far yet The cry of the Vote Leave campaign was to re-establish parliamentary sovereignty by leaving the EU. Now that we are leaving, we hear a different tune, calling on Parliament to accept that it should not examine the process of government too closely. I listened this morning to the noble Lord, Lord Bethell, no doubt reading from his brief when he said that it is vital that we restore the traditional relationship between government and Parliament. I understand that to mean: that Parliament should accept that majority government has now returned; that it should accept what the Government propose without significant amendment, particularly in the second Chamber; and that the key principle of Britain’s unwritten constitution is that the Queen’s government must be carried on without let or hindrance. That is not easily compatible with parliamentary sovereignty This clause therefore declares a half-truth. The relationship between Parliament and government in reality remains contested. The noble and learned Lord, Lord Woolf, spoke yesterday of the importance of maintaining the separation of powers between Executive, Parliament and judiciary, but there is nothing here to suggest that the judiciary can in any way be a counterbalance to government. If I correctly understood what the Prime Minister implied in Prime Minister’s Questions yesterday, he thinks it improper for judges to play such a role Twice in the last week, we have probed the promise in the Government’s manifesto and the Queen’s Speech to establish within the next 12 months, as the manifesto said, a commission on the constitution, justice and democracy. We have gathered the impression from the incoherence of ministerial answers that the Government are unsure how far they wish to open up such underlying questions of our constitutional and democratic order. It may even be that some within the Government now regret that the commitment has been made, but the commitment to a constitutional commission has been made and these questions will have to be addressed This clause, however, with its very poor drafting and its failure to refer in way to the unavoidable influence of European law on the UK as we negotiate a close future relationship, as the political declaration makes clear, does not offer any useful contribution to that task or to providing clarity for our political, legal and constitutional debate.