My Lords, in preparation for this debate, I both watched and listened to the Prime Minister’s speech. I have come to the conclusion that it was not time well spent.
I would like to concentrate on the consequences of Brexit, and in particular the impact on the rule of law. If the rule of law is to be effective, it must be observed both in substance and in process. Yet we continue to have the threat from the Prime Minister, supported by others in his Government, that somehow a way will be found to avoid implementing the obligations contained in the European Union (Withdrawal) (No. 2) Act. Not only does that Act carry the imprimatur of both Houses of Parliament; it has Royal Assent. So, by his very conduct in even suggesting it, the Prime Minister is yet again undermining the position of the monarch.
I was stimulated to deal with this topic by an article written by the noble Lord, Lord Hague, which appeared in a national newspaper this week. He argued that the rule of law was of great importance for the Tory party. That ought to be true, but I am not sure it is what we have been seeing in practice—and it is perhaps most important for the country. After the announcement of the judgment of the Supreme Court, Minister after Minister sought to undermine that judgment—some covertly, others by way of open attack. To attack judges in that way is a contempt of court; in Scotland it used until 1971 to be called “murmuring” a judge. To attack them in that way is to defame them; you are behaving in a defamatory way.
All that culminated in the suggestion that there should be public hearings of confirmation before individuals could ascend to the Supreme Court. I do not shrink from saying that that was a full-frontal attack on judicial independence. How would we apply it? Would we draw on the recent experience of the United States? Would that be our benchmark? Would we say to people, after Senator McCarthy, “Are you now or have you ever been a member of the Conservative Party?”. Exactly what would the questioning amount to?