My Lords, I am genuinely grateful for the opportunity to follow the noble Lord, Lord Dodds, for whom I have much respect, and indeed I have a good deal of sympathy with the concerns which he has expressed. But, as I hope to explain, this Bill is not the way to alleviate those concerns.
I also echo those who have paid tribute to my noble friend the Minister and expressed pleasure that he remains in his post, and of course I share the hope and aspirations, which have been widely expressed, that the difficulties we face can be solved through negotiation—and I welcome the fact that those negotiations are now under way. But the Government have asked your Lordships’ House to give this Bill a Second Reading today, and it is our duty therefore to consider its merits.
The Government seek to justify the provisions of the Bill, which would otherwise be a clear breach of international law, by reference to the doctrine of necessity. That doctrine is set out in Article 25 of the relevant treaty, which states that the doctrine cannot be invoked unless it
“is the only way”—
I stress: “the only way”—
“for the State to safeguard an essential interest against a grave and imminent peril”.
Even if it is assumed that all the other requirements of the article are met—and there are of course many reservations about that—it cannot possibly be argued that this Bill is the only way in which the state’s interests can be safeguarded. It is not the only way
because the protocol itself provides a way, a perfectly legal way, in which that objective can be achieved. It is to be found in Article 16.
I did not properly hear the answer which my noble friend the Minister gave in response to my intervention, but if he really suggested that the problem with Article 16 was that it could apply only to the whole protocol, and that therefore freedom of movement provisions would be affected, I have to tell him as gently as I can that there is absolutely no basis for that interpretation of Article 16, which gives the Government a wide discretion as to the measures which they could take. I am genuinely bewildered by the Government’s decision not to proceed by invoking Article 16. Your Lordships may be interested in the explanations for its rejection which were given to me by the Home Secretary when she was Attorney-General.
My noble friend the Minister had asked me to speak to the then Foreign Secretary, now of course the Prime Minister, about this issue. When the conversation turned to the legality of the Government’s proposals, she referred me to the Attorney-General, which your Lordships may think is in itself not entirely insignificant. The then Attorney-General told me that the decision not to invoke Article 16 was a political one. The reason, she told me, was that Article 16 permits only measures which are proportionate. I should repeat that, although it will not take long for the implications to sink in: Article 16 was not invoked because it permits only measures which are proportionate. To put it very mildly, this of course reinforces the unanswerable argument that the Government simply cannot contend that the Bill is the only course open to them. It must follow, therefore, that it constitutes a clear breach of international law.
Why does all this matter? It matters because, although I acknowledge that Parliament can legislate in breach of international law, it should not do so—and it especially should not do so at the present time. Of course it is the case that, on the scale of iniquity, the Bill, for all its flaws, does not begin to compare to the invasion of Ukraine. But Ministers—our Ministers—frequently criticise that invasion on the ground that it is a breach of international law. My noble friend did it in the course of his opening remarks. The Defence Secretary, for whom I have great respect, did it in a newspaper article on 25 September. He said of Vladimir Putin:
“We take everything he does seriously, because this is a man without any scruples and any regard for international law.”
The thing about the law, whether it is domestic or international, is that you cannot pick and choose. You cannot pray it in aid in one context and have no regard for it in another, so I urge the Government to think again. They can achieve their objectives perfectly legally by invoking Article 16, but if they persist with the Bill, I shall vote against it—not, of course, today—and I urge your Lordships to do likewise.
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