As the noble Lord, Lord Pannick, said, there is a difference between recognising that there are mechanisms that could be put in place as safeguarding and rebalancing measures, and unilateral actions that seek to go beyond what Article 16 would be for the protocol. That is the entire point.
In supporting my noble friend’s Amendments 3 and 67, I understand that the Government will have prepared—the Advocate-General will correct me if I am wrong—a legal issues memorandum, a LIM, before the Bill was approved. That goes to the Attorney-General and to the Advocate-General for Scotland, and they will have approved this legal issues memorandum which, I understand, would have had to consider the very questions that the noble Lord, Lord Pannick, indicated with regard to the options open to the Government to meet their policy ambitions. That would have included the protocol element of Article 16, as the noble Lord, Lord Dodds, indicated. In many respects, and I cover many trade debates in this House, Article 16 elements are fairly typical WTO mechanisms of safeguarding and rebalancing. The legal issues memorandum will have had to consider these options. So, at the very least, the Advocate-General can confirm to the Committee that there was a legal issues memorandum, and it did consider all these options.
The next question, therefore, is precisely where the legal argument on necessity originated. Did it originate from the FCDO? I understand that the memorandum goes to the FCDO also, for the treaties department. I am sure the Advocate-General will say that he cannot disclose this information for us, but on an issue of this importance, where did the argument for legal necessity originate? Was it his department? Was it the Office of the Advocate-General for Scotland? He is in his place precisely because his predecessor resigned, saying that his position was undermined in his endeavour to find, to quote from his letter, “a respectable argument” for breaches of international law in the United Kingdom Internal Market Act. The then Secretary of State for Northern Ireland said, notoriously, that it was a “specific and limited” breach, but the noble and learned Lord, Lord Keen, struggled hard to find a respectable argument to present for it, and because the Secretary of State was honest, the noble and learned Lord resigned. I note that the Constitution Committee report said, as has been referred to before:
“In this case, reliance on the doctrine of necessity is not a ‘respectable’ legal argument.”
I think we will touch on it when we discuss whether Clause 123 stands part, so it will be very interesting to hear what the Advocate-General says in winding on this group in order to inform some of our discussions on the next group.
I have sympathy with what has been referred to by others and I have an inkling as to what the Advocate-General may have in the folder in front of him. He may say, “It’s a long-standing convention, for very good reason, that legal advice is not published in full”, and he is no doubt prepared to say it, but why my noble friend Lord Campbell of Pittenweem is correct is that we are now in a realm of significance, given the scale of what the breach of international law would be.
I will refer to it in the next group, but my noble friend provided an amuse-bouche of the case of Hungary and Slovakia, to which the Advocate-General had referred. I also read that judgment in full. It may help the noble Lord, Lord Bew, to know what the ICJ has found repeatedly. Let me quote from its judgment in one of the cases that the Advocate-General cited.
“According to the Commission”—
that is the International Law Commission—
“the state of necessity can only be invoked under certain strictly defined conditions which must be cumulatively satisfied;”—
this is the point I want to stress—
“and the State concerned is not the sole judge of whether those conditions have been met.”
So even if he is right, one state party cannot determine solely, and the ICJ has found that repeatedly.
Even if the Advocate-General for Scotland says that it is a long-standing convention and cites examples of where legal advice was not furnished—he may overlook some examples of where it has been, of course, but that is a separate issue—the area that I want to ask about concerns what the former Advocate-General for Northern Ireland and the Attorney-General, Sir Geoffrey Cox, said in Committee in the Commons.
“There is plenty of precedent for the Attorney General coming to the House—I should know, I did it—to answer questions about the international law compatibility of a measure in this House. Indeed, it goes way back, I think, to either the Wilson Government or the Heath Government … I invite the Minister … to invite the Attorney General to come and answer those questions, because, in my judgment, it is an obligation to the House. The Attorney General has a residual duty to advise the House on matters such as this.”—[Official Report, Commons, 13/7/22; col. 400.]
Will the Advocate-General state why this has not happened? Will he provide the equivalent to this House in a Statement? We are asking the same as has been asked in the past of Attorneys-General.
8 pm
Being sympathetic to the Government just this once, I can perhaps understand their hesitation. When the Paymaster-General responded in negative terms to the call for the Attorney-General to answer questions about the protocol, he did so on 13 July. The previous day, the very same Attorney-General, Suella Braverman, wrote an article in the Times entitled “How I’ll get Britain back on track”. I will quote from her article:
“The Northern Ireland Protocol Bill needs to be changed so that it actually solves the problem. That means VAT, excise and medicines should be under UK law from day one—currently they are not … Otherwise we’re giving Brussels a legislative blank cheque. These are all changes I’ve been fighting for while in government. Without them, the bill treats people living in Northern Ireland as second-class citizens.”
I can perhaps understand why the Government were reluctant.
Currently—for how long I do not know—the Attorney-General is the same Michael Ellis—