Thread by @WomaninHavana

#RuleofLaw This important meeting has just begun. I understand there is a very high level of registrations. The speakers - former President of UK Supreme Court Lord Neuberger, Dominic Grieve QC, Joanna Cherry QC, Baroness Helena Kennedy QC - are now joined by Lord Howard. #IMBill

https://twitter.com/thebarcouncil/status/1313424188137500673

This meeting is not about political views, which are irrelevant . Defending the rule of law is “activist” for the benefit of every person in the country, whatever their political views.

The issues today surmount politics: @JMPSimor

The #IMBill gives Ministers the powers to make their otherwise illegal acts, legal in whatever way they choose. This is an astonishing idea: @JMPSimor

Without politicians who play by the rules - even if unenforceable rules - and without a “rule of law” grounded in constitutional principle, this country may spiral into a state that is superficially free but whose institutions do not function independently:@JMPSimor

Lord Howard: Opposed to those clauses in the Bill but hope Parliament defeats those clauses before it reaches the statute book. There is a prospect that would happen and I will do my utmost to ensure that would happen.

Lord Neuberger: i don’t intend to be party political or Brexit political. This Bill is very worrying. Three clauses say UK govt can freely breach its obligations under international treaties & Ministers can make regulations which appear courts are not entitled to review.

Neuberger: This country has had remarkable unbroken history of observing the rule of law, gives us authority abroad when we criticise other countries.

At home, once you deprive individuals of their fundamental right to challenge govt in court, you are in tyranny.

In context of pandemic - what moral authority does govt have if itself announces it intends to break its obligations in international law and intends to stop individuals going to court?

If govt undermines its right to respect, we are all getting into serious difficulties.

Baroness Kennedy: over 2000 participants from across the UK taking part in this seminar.

Dominic Grieve QC: Reputational consequences of this legislation are very serious indeed and why I was appalled.

Parliament may be sovereign but this is legislation to create Regs. To bring in ouster clauses, esp new Clause 47, is astonishing. It undermines sovereignty.

I really worry about how this has been allowed to happen. Historically one of roles of law officer is to ensure legislation not introduced that breaches conventions. The law officers should have flagged it up & simply said this is so extraordinary that it is unacceptable: Grieve.

Grieve: this causes real concern about where we are going as a country.

Why should anyone obey with Regs they don’t like, eg covid regs, given govt own position.

Agreed with Howard, Neuberger to hope Parliament defeats this Bill.

Grieve: If this doesn’t work, our country will be seriously diminished.

Now @joannaccherry: Many people have attempted to justify #IMB by peddling line of sovereignty by s38 Withdrawal Act. Glad to hear Lord Sumption say this was absurd.

Cherry: Doctrine of parliamentary sovereignty is an English tradition. It’s a point of relevance should Scottish govt challenge #IMB in court.

Implications of Bill for devolved govt: Cross-cuts powers that were thought to have been devolved. See also Clauses 48 & 50 #IMBill.

Cherry: European internal market are set by negotiation. New rules are set by govt w/o obligation to get consent of devolved plmnt.

Rebalancing of constitutional settlement. Understood as a convention UK parliament wouldn’t usually legislate without consent of devolved plmnt.

Cherry recognises Miller judgment but says convention now more honoured in the breach than the observance.

Cherry: if Scottish govt bring a legal challenge, constitution of UK shouldn’t just be seen through prism of devolution, but also through Treaty of Union.

Is this part of a trend?

Grieve: Yes & goes back a long way to my time in Opposition. Simply trying to take short cuts. I’ve watched parliamentary sovereignty move to a mad concept that govt & Parliament can do whatever they like. Fortunately in past, govt respected conventions.

Grieve: Now seems govt are happy to abandon those conventions, and that leads to constitutional crisis.

Cherry: The idea we now produce an Act of Parliament that takes the guts out of the N I Protocol. And human rights are integral to Good Friday Agreement & N I Protocol. Very concerning & must lead to a legal challenge. N I Protocol didn’t pop out of a bush.

How does Parliament defeat this when the rhetoric is so anti-law and lawyer? Q for Lord Howard:

A: I think reasonable prospect of Lords using its power & it would perhaps mean end of the legislation.

Howard: There is a possibility it may never reach crunch point if govt & EU reach agreement. We may avoid this apocalyptic confrontation.

Depends on extent HL prepared to assert its power to delay legislation. In the end, may depend on attitude of Labour peers.

Howard: Central concern is those clauses which renege on an international treaty signed a few months ago. Doesn’t agree with some other comments or Grieve and Cherry.

Kennedy asks Howard, as a lawyer, if it turns his stomach to hear Home Secretary’s rhetoric about lawyers.

Howard: Those are now words I would have used. Important to understand frustration about repeated last-min attempts on asylum...

Neuberger asked if we now need a written constitution?

Always been a powerful argument for a written constitution, but argument other way is stronger because 350 years without invasions & tyranny. We have maintained rule of law & democracy. It is now being tested.

Neuberger: Price of liberty is eternal vigilance. We have a duty to be vigilant.

It may be time to take a long look at how we are governed. But it’s not the right time for a constitution.

Grieve: Law Officers are there to facilitate govt getting what it needs in a lawful manner. But they also have a role of propriety, which goes to core of our constitution. Power has to be exercised within certain limits.

Grieve: You have to respect limits. This goes over those limits. Breach of international law is unprecedented. Mumbo jumbo about parliament not being bound by international law. The executive is.

Grieve: These ouster clauses are extraordinary as go to the heart of the NI settlement, arguably devolution aspect & v stark. Offends the convention that Regs are open to the scrutiny of courts. That’s a serious package and no self respecting govt should embark on such a course.

Grieve: The law officers should have stopped it. The AG should have resigned. Lord Chancellor takes an oath to respect the rule of law, which case law also states includes international law. His position is untenable.

(Missed some of the q by Martin Howe re bad faith by the EU) Grieve says this is flagrant breach of an international legal obligation.

Grieve & Howard agree there may be things in WA that may not be ideal but UK signed it. Exclusive provisions for dispute settlement are there.

Cherry asked if challenges likely in Scotland.

If a challenge has to be brought, hope it would be brought by Scottish colleagues. A vote tonight. Limits to devolved settlement & stuck on SC decision in Miller 1.

Cherry: Talks about lack of evidence that EU acting in bad faith. But bringing this Bill suggests UK is acting in bad faith.

Lord Neuberger is asked how an unwritten constitution can work when so many parts of our constitutional arrangements are being challenged.

Neuberger: Many written constitutions don’t work, despite good words.

Neuberger: You need a good reliable culture where people observe the rules. If you lose the rule of law, it’s v difficult to get back to it if it is corrupted. We are in dangerous times. No time now for a written constitution. This is a fundamental rule of law issue for Plmnt.

Neuberger: If the #IMBill goes through, then it will put the courts in an unenviable position, and a collision course. But the courts will have to sort it out.

If you don’t sort out problems in court, you have civil war.

Neuberger: In each Miller case, the judges were not enemies of the people, stood up for parliament and so the people.

Howard doesn’t agree.

Cherry: good to be on a panel sharing concern about the rule of law, across perspectives, sharing much of Lord Howard. And with Lord Neuberger, share concern this will end up in the courts and will force an agenda which some people are pushing, as an anti rule of law agenda.

Grieve: Irrespective of one’s views about Brexit, everyone should stand together against this govt stance to deliberately set out to trash the rule of law.

Note: In fact only 1000 people were permitted to enter the webinar but over 2000 registered. It will be made available on the @IBAHRI website.

Gotta dash to another meeting, but I hope I captured the sense and spirit of this important meeting on #ruleoflaw.

(It’s hard to keep up with lawyers talking passionately about the rule of law so any shorthand or omissions are unintended!)

Here is the recording for all those who would like to watch yesterday’s #ruleoflaw webinar.

https://twitter.com/ibahri/status/1314138163196178432