My Lords, I would not dream of questioning the judgment of the noble and learned Lord, Lord Judge, in matters of the law—of course I would not—but I would say that the rule of law, as a matter of principle, is as important to me as it is to any noble Lord, however learned. However, like many legal matters, it is a question of fact and degree. I am not a lawyer but I have been involved in enough litigation to know that two Silks of equal distinction can produce very different and equally persuasive arguments for or against almost any legal question that any of us could pose.
These things are not, as some would like to have us believe, black and white. Like everything in life, they come in shades of grey. To my father, as a newly qualified barrister in 1938, the invasion of Poland in 1939 was not grey; it was completely black and white. However, having sat through the debates in your Lordships’ House in 2003, to me it was clear that many of the lawyers in this House came to a very different conclusion
about the legality of the invasion of Iraq from that reached by the Labour Government. To them, it was not black and white; it was a matter of opinion.
In terms of degree, my belief in the rule of law, which I consider to be probably the most important principle that we espouse, has not stopped me from time to time—I hang my head in shame today—parking on a double yellow line. I do not suppose that I am the only noble Lord to have broken the law at some time or another. It would be hypocritical of us not to admit that we can all be flexible when it suits us.
I share with others regret that my right honourable friend the Secretary of State made the statement in the other place that set this hare running. I do not know whether it has been suggested that the Government felt that that declaration from the Dispatch Box would provide some form of legal cover in the event that some remainer obsessive decided to run another case to the Supreme Court in the hope that that court would be prepared to compromise its reputation by indulging in another political judgment.
It is primarily a political and not a legal matter when a foreign power seeks in negotiating an agreement, supposedly entered into in good faith, to use that negotiation deliberately to interfere with the delicate relationship between the component parts of an independent nation state, such as those of Great Britain and Northern Ireland. It is perfectly obvious that the European Commission very early on worked out that this was our Achilles heel, and has done its level best to exploit this for its own ends. That is not the conduct of a good neighbour and trading partner acting in good faith; that is the behaviour of someone who does not wish us well. It is in effect a trap, deliberately placed where it would do the most harm. But what Government, having spotted this trap, would continue to blunder on, rather than take whatever measures they could to avoid it? It is the Government’s duty to avoid a trap, almost at any cost, which is precisely what the Bill seeks to do.
A final point on the issue of national reputation: who is it, I wonder, who will think so much less of us for having ducked this punch, aimed as it was below our belt? For example, I am not very interested in China’s view of our trade arrangements with Northern Ireland, particularly in comparison with their behaviour towards Hong Kong. Nor will I take any lectures from Mr Putin about the rule of law. President Trump thinks we are mad not to have walked away from the EU years ago, and Mr Biden has already made his views—firmly in line with those of his Irish republican voters—clear, and there is no changing that. The current members of the EU obviously think the worst of us, and they always have done. But who cares?
I do business in South America and Africa, and no one I have ever met in either of those continents has the remotest interest in this squabble, but they would all love to do business with us. Our Commonwealth friends are not fooled by this stuff. Saudi Arabia and our allies in the Gulf share the same view as their new Israeli friends—that business is business, a view shared by our Pacific trading partners. If our reputation is harmed, I am struggling to see with whom.
6.56 pm