In a learned and lawyerly article for the DT, the Vice President of ‘Lawyers for Britain’, Clive Thorne, offers his opinion which ought to be food for thought for the Remainer MPS in the HoC. His article, with the title “The new Brexit bill is more a political than legal issue” (paywalled link), gently blows those ‘legal’ arguments out of the water.

It’s astonishing that so many Remain Tories, subdued and silent until now, are suddenly finding their Remain voice again, as if they’ve woken up out of their Covid slumber. They are given ample space in the MSM to tell us all how awful, how dangerous, this proposed Bill is – Ms May, unsurprisingly, well to the fore. They would do well to get their heads round Clive Thorne’s arguments.

After recapitulating what the WA implies, Mr Thorne makes some points which are of extreme importance in the arguments about International Law being breached, as stated by Brussels and our Remainers:

“The government has rightly indicated that the protocol purports to achieve the irreconcilable: protecting the EU Single Market and the trading integrity of the Irish Republic whilst also giving Northern Ireland unfettered access to markets in Great Britain. In any event, the EU is not a state and the court has no jurisdiction in disputes between it and a non-member nation state.

The arrangement was concluded with strong pressure by the Irish Republic, which arguably failed to recognize that there is a fundamental distinction between its position as an EU member state which has subsumed its trading rights within the EU and the United Kingdom which is now, in the words of Lord Frost, “a sovereign state, free to set its own laws”. 

Trading laws and policy largely fall outside the terms of the Good Friday Agreement, so there is no obligation to treat the Irish Republic other than as an EU member state.” (paywalled link)

This is a first indication that the arguments about the Good Friday Agreement and by implication about a ‘breach of International Law’ are so much dust thrown up by the vested interests of Remain here and the EU over there. There’s more:

“Against that background, the British Government has indicated its intention to amend the Withdrawal Agreement to address the state aid issue so that EU rules only apply in Northern Ireland, to reform the requirement that Northern Irish businesses must complete export declarations when they send goods to Great Britain and to reform the procedure for exporting goods from Great Britain to Northern Ireland. It is also introducing an Internal Market Bill to ensure goods from Northern Ireland continue to have unfettered access to the UK.” (paywalled link)

Mr Thorne then addresses that outcry about the legality of the Bill, by referring to Parliamentary Sovereignty and by presenting precedents, according to lawyerly customs:

“The question therefore is whether the proposed action is lawful.  The position under domestic law is plain, and stems from the long-established doctrine of parliamentary sovereignty which has frequently been summarized that Parliament can make laws covering anything, that no Parliament can bind a future Parliament and in practice most importantly that a valid Act of Parliament cannot be questioned by the court .

Exceptions to this doctrine included the European Communities Act 1972, which provided for the supremacy of EU law. That legislation was however repealed by section 1 of the 2018 Act. Other exceptions include the Human Rights legislation though it is hard to see the relevance of that in relation to trade practice and policy.

The highest courts in the United Kingdom and in Commonwealth countries including New Zealand have approved the above concepts of parliamentary sovereignty. Jurists of the highest calibre including Lord Bingham and Lord Reid have approved the doctrine in their judgments. A prime example  is Lord Reid giving the advice of the majority in the Privy Council in 1967 in the well-known Rhodesian independence case of Madzimbamuto v Lardner-Burke.” (paywalled link)

Having written that, he comes to the main, the important point, referring to ‘Section 38 of the 2020 Act’ – this was inserted by Sir Bill Cash who knew very well what he was doing. Sir John Redwood wrote in his Diary a few days ago that it was the insertion of that section which allowed him to vote for the WA:

“However, the position of the government in this case is strengthened by section 38 of the 2020 Act which expressly asserts the sovereignty of Parliament. This section specifically enables Parliament to introduce legislation to amend the Withdrawal Agreement.      

It is therefore highly unlikely that another attempt, for example by Gina Miller in the Supreme Court, to prevent a change in the Withdrawal Agreement would succeed. The government should nevertheless be prepared for such an attempt.” (paywalled link)

Indeed so – but that and other litigation might in the end turn out to be futile, writes Mr Thorne:

“There remains the possibility of litigation in the International Court of Justice in the Hague to enforce the Withdrawal Agreement in its original form as an international treaty under the Vienna Convention, but is that really likely? The result after a number of years might be a declaration against the United Kingdom but in practice that would have limited effect and events inevitably will have moved on.” (paywalled link)

Clive Thorne concludes his article thus:

“Ultimately, this is a matter of politics with a Prime Minister backed by an 80 seat majority and with a general election over 4 years away will be able to pass the required legislation despite the strictures of his predecessor. He will no doubt have in mind the words of a former member of Parliament for South Down, a Northern Irish constituency, who memorably stated that “whatever the true interest of our country calls for is always possible. We have nothing to fear but our own doubts.” (paywalled link)

I concur, but Johnson, who is still regarding himself as some sort of Churchill successor, would also do well to remember the words of another PM from the 19th century who knew a thing or two about fear. It’s the First Duke of Wellington, who said:

‘The people of England must be governed by persons who are not afraid.’

Someone ought to tell Johnson – perhaps he might even shake off his Covid fear …

 

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