Rt Hon Lord Lilley

    Lord Lilley:

    My Lords, I congratulate the noble Baroness on her excellent maiden speech and look forward to hearing both her spoken and her musical words in future. As a non-lawyer, I enter this arena like a Christian facing a pride of angry legal lions. This is made worse by the fact that they have already captured my own archbishop. I am armed only with a simple question: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or its own constitutional law? The only reply I have received so far is: “You shouldn’t have signed the withdrawal treaty”.

    That might work in a student debate, but it fails to address my question, so let me answer it myself, not in my own words but in those of the European Court of Justice. In the Kadi case, the court affirmed that, although the EU seeks to comply with its international legal obligations,

    “it would be wrong to conclude that, once the Community is bound by a rule of international law, the Community Courts must bow to that rule with complete acquiescence and apply it unconditionally”.

    Likewise, the German constitutional court has ruled that if treaties, even EU treaties, conflict with German constitutional law, the latter prevails. Of course, British Governments have disapplied aspects of international law, the most famous example being the United Nations Convention on the Law of the Sea, 15 days after it came into effect, when the future Lord Diplock ruled that

    “the Crown has a sovereign right, which the court cannot question”, to do so. Moreover, in Section 38 of the withdrawal Act, Parliament explicitly foresaw that it might need to set aside the direct application of the withdrawal treaty, as this Bill permits.

    However, no one ever suggested when they disapplied parts of the conflicting laws that the European Court of Justice, the German court or previous UK Governments had broken the law—until Brandon Lewis uttered those fatal words. These have been seized on as a weapon by some, and proved a stumbling block for some of my closest friends, but I believe they should be disavowed. This raises the question: are there potential conflicts between obligations under the withdrawal treaty and our fundamental constitutional laws? There are certainly many internal contradictions within the withdrawal Act, but we ratified it because it contains a mechanism—the joint committee—in which both sides are committed to resolve outstanding issues in good faith and respecting each other’s legal order. So, given good faith and mutual respect, there should be no conflict with our legal order, the pillar of which is the Act of Union between Great Britain and Ireland, which pledges that “all prohibitions and bounties”—that is, tariffs—

    “on the export of articles … of either country to the other shall cease.”

    This is buttressed by the Belfast agreement, which promises no change in that union without the consent of both communities.

    However, the EU has been showing little evidence of good faith, insisting on applying the entire EU customs code, which would mean that no goods could move from Northern Ireland to Great Britain without an EU export declaration—something my noble and learned friend Lord Clarke used to say was one of the disadvantages we would face in all our trade once we left the customs union. That is contrary to both the Act of Union and Article 6 of the protocol, which says:

    “Nothing in this protocol shall prevent the United Kingdom from ensuring unfettered market access for goods moving from Northern Ireland to other parts of the United Kingdom’s internal market.”

    In the other direction, the withdrawal treaty commits both sides to agree before the end of the transition period the definition of goods which are at risk of crossing into the Republic. The EU has implied that, if it declines to agree, the UK will have to levy EU tariffs on all goods going from Great Britain to Northern Ireland. Both these results would conflict with the Act of Union and the Belfast agreement. Happily, because of this Bill, the EU seems to be pulling back from both these positions. I hope that good faith will prevail and we will not need to implement the clauses in this Bill, but it would be irresponsible to leave this country unprepared by rejecting them.

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