My Lords, I join in the congratulations to the noble Baroness, Lady Hayman of Ullock, and my noble friend Lord Sarfraz on their maiden speeches, which I much enjoyed. I hope they enjoy this House as much as I have. I also hope they listened to my noble friend Lord Cavendish of Furness, who gave a slight word of warning that we have lost many of our friends in the other place, and we have not made any new ones, so our future is not quite as straightforward as we might all hope.
I want to talk about the extremely shabby way in which my noble and learned friend Lord Keen of Elie was treated by this House and by others in the Government. He was a very fine lawyer, and probably one of the best Advocates-General for Scotland that we have ever seen. Those are not my words; they were the words of the noble and learned Lord, Lord Wallace of Tankerness, earlier today. We have lost an extremely able man, and the contributions of rather lesser men in your Lordships’ House have contributed to him being removed from office. I do not think that that has done any great favours to our House, or to Scotland.
In previous Administrations in which I served, in a very junior capacity, we always had problems of how you interpret legal situations. A tremendous onus is put on our law officers to decide whether things are
legal or illegal. The noble and learned Lord, Lord Morris of Aberavon, made reference to this, with respect to his time as Attorney-General under a Labour Government.
My noble and learned friend Lord Keen, on 15 September, made it absolutely clear that he thought the Internal Market Bill, which we are now considering, was within our obligations under the withdrawal agreement and was legal. A number of noble Lords have chosen during this debate to try to obscure that fact and say that somehow my noble and learned friend Lord Keen was conflicted. He was not. He said on that occasion that
“the EU has materially breached its treaty obligations and … we find that it may have acted in such a way as to fundamentally alter our obligations under the treaties.”—[Official Report, 15/9/20; col. 1131.]
So he was quite unequivocal on the fact that the Government were acting completely legally over this, and he was the law officer.
In my opinion, what he was referring to—these are my words—was the fact that the EU had decided to say that the border in the Irish Sea should remain even if we left the EU with no deal. That, of course, would have undermined completely the single market of the United Kingdom and was totally unacceptable to this country. So it seems quite straightforward that my noble and learned friend Lord Keen considered the actions of the Government to be legal.
Therefore, we have to ask what on earth my right honourable friend the Secretary of State for Northern Ireland was doing when he said that in some way this was a minor infringement or a technical matter that was only slightly illegal. I do not think that things can be slightly illegal—they are either legal or illegal—and I do not really know what Brandon Lewis was doing. He was actually called to the Bar himself in his youth. Why did he not question what he was doing by getting up and saying that this was only slightly illegal? That is rather like the curate’s egg—excellent in parts—or a woman saying that she is only half-pregnant.
At the end of the day, the advice that should have been taken by this Government was from its law officers. There may be many noble Lords in your Lordships’ House who do not agree with the judgment of my noble and learned friend Lord Keen, but he said that this was legal, I believe it to be legal, and for that reason I shall be voting against the amendment moved by the noble and learned Lord, Lord Judge, and supporting the Bill.
8.05 pm