Lord Faulks is a fellow bencher of the Middle Temple and a distinguished lawyer. That does not mean that one always has to agree with everything that he says. It would not be fair or reasonable to judge somebody by past comments until we have seen the results of the panel as a whole. Lord Faulks is the chair of the panel, but there are other very distinguished people on it as well. I respect what the hon. and learned Lady says, but this is a classic case of not prejudging the issue until we have seen the outcome of the deliberations.
I am a great believer in judicial review, in appropriate cases. Has it sometimes been abused? Many people would say that perhaps that can be the case. When I was the junior Minister at the Department for Communities and Local Government, I was critical of the attitude adopted to some decisions by the then Secretary of State, the noble Lord Pickles, is he is now, in relation to the removal of regional spatial strategies. We were judicially reviewed by large commercial housebuilders, undoubtedly in pursuit of their own vested commercial interests. They sought to prevent our removing the comparatively easy route, so they could impose large housing developments on communities that did not want them. I was critical of those house builders for doing that and for undermining in law the wishes of local residents. The courts found that they were entitled to do it, but that does not mean that we were assaulting judicial review as a concept, simply by criticising the motive behind some of the people who bring it.
There is an important distinction, which I recognise. We criticised the clients—the people who brought the judicial review—but I did not criticise the lawyers who were instructed on their behalf. I would not seek to do so. It is important to say that we should not, whatever our views in politics, use political arguments to attack lawyers generally or by taking broadbrush approaches. The attacks upon the judges, which were not perhaps called out as much as they should have been at the time of the early Miller litigation, were wholly disgraceful and unacceptable. The current Lord Chancellor has made it clear that he would not countenance such attacks and such language without speaking out. That is very much to his credit and entirely consistent with
his own personal integrity. I do not care for the use of language such as “lefty lawyers” or the broadbrush approach of saying that systems are being hijacked. That is not language that I would use. However, I am a Member of Parliament; I am not a speech writer.
I gently observe that the hon. and learned Member for Edinburgh South West referred to the taxi rank principle at the Bar. That is something that I have always worked under as well. To be fair, there have always been sets of chambers that would not prosecute, or would not act for landlords, for example. Some might ask whether that is in theory inconsistent with the taxi rank rule. It probably is, yet it is not something that warrants a great deal of personal attack. I just make the observation that those matters cannot be seen in a purely academic sense. I would not make too much of that, but that is where I stand as far as that is concerned. It is pretty clear where the Lord Chancellor stands, and where I suspect my hon. Friend the Minister stands as well, as far as those matters are concerned.
The other issue raised is part 5 of the United Kingdom Internal Market Bill, about which I was not a little critical when it was first introduced. I believe we have sought to improve that Bill. Is it perfect? As yet, that I do not know. Would the use of the powers in part 5 be wise politics? That is a very big question mark. However, that is not the same as, say, that it is per se constitutionally improper to put those clauses in the Bill, provided there are appropriate safeguards. The hon. and learned Member for Edinburgh South West might disagree upon that, but I think it is a legitimate area of legal dispute and the Lord Chancellor is entitled to have a different view from her and, indeed, perhaps from me in that regard, without it being suggested that he has failed to uphold his oath of office or his constitutional obligations.
I note the views, which have been referred to, of Professor Catherine Barnard. She is a distinguished academic and her views are worthy of respect. By their nature, however, she not being a judge or legislator, and valuable and worthy of respect though they are, they cannot be determinative of the point. It is one side of an argument that can properly be hooked. If, on those matters, there were no scope for difference of opinion, no scope for difference of legal interpretation, no scope for legal argument, there would scarcely be any scope for litigation and scarcely any scope for lawyers at the end of the day. It is perfectly possible for respectable lawyers to hold different opinions around matters of this kind, particularly in emerging areas of law or new legislation as it comes forward, without it being appropriate for us to say that either side is seeking to undermine constitutional principles or their professional or governmental responsibilities. That is the proper way to look at the position, as far as that is concerned here.
I am glad to say, in response to some of the endeavours, which I may have had a small hand in, the Government have made it clear that, effectively, they will only be using those powers should they ever be needed. I hope to heavens that they are never needed because we will get a deal, but should that be the case, there will be certain triggers that would have to be met, both in procedural terms but also in terms of substance. In particular, we would only do so had the European Union, in our judgment, demonstrated bad faith. Bad faith is recognised in international treaty law and in the
Vienna convention as being a ground under which it is possible to derogate from an otherwise binding commitment.
The fact that we will be using this as a shield rather than a sword is important—it is the doctrine of equitable estoppel, in some respects. The Minister may well have more to say about that, but that is an important shift and one that I welcome. Therefore, the suggestion that the mere putting of those clauses on the face of the legislation is itself a breach of law is not one that is universally accepted, and I do not think therefore that it can be regarded as an act of impropriety on the part of the Government or of any Minister. As I say, there is a proper political debate as to the wisdom of using them, if we ever come to that, but that is not for today.
I want to say one final thing in relation to this. Lord Bingham was very clear that the rule of law itself is something that can evolve and must be flexible, but there are certain fundamentals. I do not think anyone would suggest that anything we are doing here alters the basic fundamentals. I am conscious of his eighth principle, but I do not think we are at that stage, and I hope we will not be. Moreover, he accepted that parliamentary sovereignty was a fundamental part of the rule of law too. There is always a set of checks and balances in that regard.
I have no problem with certain circumstances where the actions of Ministers properly should be reviewed by the courts, but I do not think this is really going to change that. Lord Bingham made it quite clear, though, that he did not accept the view advanced by, for example, Lord Steyn or Baroness Hale of Richmond that there are some concepts so fundamental that even Parliament cannot legislate to change them. He did not take that view. Again, there is a perfectly respectable dispute there and disagreement between highly distinguished former jurists, which makes the point that none of the arguments powerfully advanced by the hon. and learned Member for Edinburgh South West are determinative of any failing by either the Lord Chancellor or any other Minister in respect of their constitutional obligations.
This is a worthwhile debate to have. In a sense, an hour and a half is not enough to do it justice, because as we go forward, we are going to have to think about our constitutional and legal settlements in a broader sense, how we will operate the separation of powers in a post-Brexit world and how, continuing, as I hope, as a unified state with devolution within it, we can perhaps refine the arrangements that are required to make that work in practice too. Those are all proper matters for further consideration, but do not, I think, impinge upon any proper allegation of any failure by the current Lord Chancellor or his Ministers to act in accordance with their constitutional duties.