Rt Hon Lord Lilley

    Lord Lilley:

    My Lords, we have listened to many moving and powerful speeches from right reverend Prelates and noble and learned Lords about the abstract principles raised by this Bill and, particularly, by Part 5. They are very important principles. It is a particular privilege to follow the speech of the noble Lord, Lordusb Dodds, which has been the first to spell out the practical implications for people’s livelihoods if the withdrawal agreement is not applied in the spirit of the promises made by both sides—the United Kingdom as well as the European Union—to all the people of Northern Ireland. There are practical and constitutional consequences, which somehow have escaped the notice of every single noble Lord who has spoken up to this moment.

    At Second Reading, I asked a question which I make no apology for repeating: what should a state do if it finds that its obligations under one treaty conflict with those under another treaty or with its own fundamental constitutional laws? No one in your Lordships’ House has explicitly addressed that question. Maybe that reflects how difficult our hybrid procedures make the proper and effective interchange of ideas and debate in this House, but maybe it was also because most noble Lords have framed their positions in absolutist terms: we must obey international law, full stop.

    By implication, there can be no circumstances in which legal obligations under one treaty can clash with those under another or with a country’s fundamental domestic laws. However, as I pointed out before, that is not the view that other countries take. The European Court of Justice itself spelled out that, although the European Union 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”.

    It also says that,

    “although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty.”

    I do not think it is wrong to say that. If I wanted to carry forward the European Union, I would have that order of priorities, but I want to carry forward the United Kingdom, so my priorities are put first and foremost—the fundamental constitutional laws of this country, when and if they clash with an international treaty.

    The German Constitutional Court has ruled that if treaties—even European Union treaties—conflict with basic German constitutional law, the latter prevails. The strange thing is that, when the EU or Germany set aside any aspect of international law that clashes with their fundamental internal laws, no one suggests that they are putting at risk the entire international framework of law or rendering themselves international legal pariahs. Why is it so contentious when we suggest that we might need to do likewise when it is not contentious for them?

    Although no noble Lord in the debate explicitly answered my questions or addressed these issues, the noble and learned Lord, Lord Judge, who opened both this debate and the debate on his amendment to the Second Reading Motion expressing regret, implicitly addressed the issue in his summing up of the debate. He acknowledged:

    “‘We may need these powers at some stage.’ Maybe we will; I hope not. If we do, it is perfectly open to the Government to come back to us, to Parliament, to put before us emergency legislation and … proposals, and, if they are satisfactory, to endorse them.”—[Official Report, 20/10/20; col. 1431.]

    But surely, once we accept that powers regarding overall aspects of the withdrawal treaty may be necessary in future, the enabling measures in Part 5 cannot be wrong in principle. Whether we take the power now or reserve doing so for a later date in a separate Bill becomes a procedural and tactical issue, not one of principle. My own view is that having the enabling power on the statute book makes it less likely that the European Union will refuse to negotiate “in good faith” and with respect for the other party’s “legal order”—wording used in our agreement with the EU—on the issues in Part 5 and the planned finance Bill.

    I have the greatest respect for the noble and learned Lord, Lord Judge, and not just for his mastery of the law but for the objective and non-partisan way in which he approaches these issues and every other. He has been kind enough to correspond with me about these issues. Like him, I hope we never need to invoke the powers in Part 5 to override the withdrawal Act, be they the powers in this Bill or in the emergency legislation that he envisages. But like him, I recognise we may need to if the EU refuses to resolve these issues by negotiating in good faith and out of respect for our internal legal order—particularly, the Act of Union, which guaranteed free and unfettered trade between Great Britain and Ireland, and the Belfast agreement, which promised no change in the status of Northern Ireland without the acceptance of both communities.

    Like the noble and learned Lord, Lord Judge, I accept that if such a problem does emerge, we should try to resolve it by the procedures within the withdrawal treaty. If we cannot agree in the Joint Committee, those would most obviously include activating Article 16. As the noble and learned Lord, Lord Keen, said, these powers in this Bill will be necessary even if we invoke Article 16 of the treaty. That would not enable the Government to act without legislative authority, so it is important to have that legislative authority on the statute book—indeed, it is essential. Again, like the noble and learned Lord, Lord Judge, I hope it will not be necessary.

    There ought not to be any conflict between the withdrawal treaty and our fundamental laws, as long as both sides negotiate, as they have promised to do, the remaining internal contradictions in the withdrawal Act in good faith and with respect for each other’s constitutional orders. I was not alone in mentioning the potential clash between the withdrawal treaty and our fundamental laws. So did my noble friend Lord True in his brilliant closing speech at the end of the Second Reading debate, when he referred notably to the need to uphold the Act of Union, which ensures unfettered trade between parts of the United Kingdom, and the Belfast agreement.

    I hope noble Lords will ponder these things and, most of all, the summing up by the noble and learned Lord, Lord Judge, that it may be necessary—though let us hope it is not—for us to resolve a conflict between the withdrawal treaty and the Act of Union and Belfast agreement. It is sensible to have that legislation on the statute book. But we are not, by doing so, rendering ourselves international pariahs or doing anything that any other country would not do in similar circumstances.