My Lords, after the powerful speech from the noble Baroness, Lady Neuberger, I feel rather sad to return to the technical detail. But a point was raised by the noble Baroness, Lady Ludford, that I thought was worth addressing, particularly in the context of the Bar Council briefing. The noble Baroness asked: where is the purchase for the courts to take action? The Bar Council briefing has some really interesting reflections
on this. It says that the Bill is unlawful by design and incompatible with the constitutional principle of the rule of law because the law forbids
“the exercise of state power in an arbitrary, oppressive or abusive manner; and that principle ‘cannot be set aside on utilitarian grounds’”.
None the less, the Bar Council says that the courts are
“unlikely to consider that these foundational constitutional principles could alter the government’s intended operation of the Act”,
and that the courts will see that Parliament has decided to trade off the fundamental rights of the rule of law against the Government’s utilitarian principles.
The Minister does not seem to like me cross-referring to other Bills, but I will cross-refer to the Law Society briefing and the Financial Services and Markets Bill, on which we have had a huge debate about the Government’s intention to make the UK’s financial sector competitive. The Law Society says that our global reputation for upholding the rule of law underpins all of our attractiveness to global investment.
2.30 am