Let me start today with some good news from two seemingly unconnected sources.
Firstly, despite his bluster and threats of court action, Donald Trump will soon no longer be the President of the United States of America. Secondly, earlier this week, the House of Lords roundly rejected the UK government’s internal market bill by a higher margin -268 – than any recorded since the reform of the upper chamber in 1999. In fact, the lords smashed the record twice in the same sitting. It is quite the irony that it took an unelected chamber to protect the integrity of the international treaties agreed to by an elected one.
How are these two things connected and why do they matter?
Let’s take the second part – the government’s humiliating defeat at the hands of the Lords – first. For transparency, I am opposed to hereditary peerages, head of states by accident of birth and unelected second chambers, but the latter exists and credit where it is due – especially to David Anderson KBE QC (Lord Anderson of Ipswich, and a not-too-distant cousin of mine. It’s a small world).
Lord Anderson began his speech during Monday’s debate by recalling his visit as part of a legal delegation to Tallinn, Estonia, after that country reclaimed its independence. He claimed he would never forget the Latin words inscribed on the plaque on his party’s table.
Pacta Sunt Servanda.
Translation – Agreements must be kept. Perhaps the oldest pillar of international law, and one which the Westminster Parliament was trying to avoid.
“Indeed”, he said, “the whole purpose (of the Internal Market Bill) is to signal to our negotiating partners a kind of anarchic disdain for this government’s recent, specific and binding commitment on export declaration and state aid, and disdain for the very principle that treaties must be observed. Imagine if the EU were to renege on the guarantees it gave to British citizens in the Withdrawal Agreement? There would be justified accusations of perfidy and duplicity. Yet it is, I’m afraid, precisely such duplicity that we are being asked to facilitate today”.
“This bill”, he concludes, “seeks to make parliament complicit in a scheme that openly flouts two fundamental principles: that agreement, once made, should be kept; and that government is not above the law”.
“How could one possibly go along with that?”
Of course, it’s for Westminster to legislate as it sees fit. But as my esteemed relation points out, if UK passes laws designed to break International laws and their protocols, then there will be no trade deal with anyone. The EU cannot ratify a new deal while UK is legislating to break a previous agreement and negotiating in bad faith. Trust Matters. Pacta Sunt Servanda.
And it certainly matters to President-Elect Joe Biden, a man who, like many Americans, is immensely proud of his Irish heritage and will therefore never countenance for one second negotiating with people who would even consider undermining the Good Friday Agreement that American politicians of all hues hold sacrosanct and in which they have such keenly felt agency.
There is a course another reason – it’s good for business. Brexit exceptionalists like Michael Gove like to crow about the size of the British economy, but this omits two important points. Firstly, British exports have nearly halved since the 2016 Brexit vote so we have a lot less to trade. And, secondly, a deal with any independent EU country, even a smallish one like Ireland – or, very soon, Scotland – gives access to five hundred million people, something that won’t have escaped the notice of the old school Europhile Joe Biden.
So a newly independent Scotland in Europe in the age of Biden presents an opportunity. The question is how to get there, and in considering this we realise, after witnessing the Trump presidency expose the limits in American democracy, the narrow constraints of our own.
Back in the day, Margaret Thatcher’s position was that, if Scotland returned a majority of pro-independence MPs to The Commons, that constituted not just just the right to a self-determination plebiscite but independence itself. And yet, on Monday, Secretary of State for Scotland Alister Jack said the UK government would rule out another vote for a generation – which he then defined as between twenty-five and forty years. If it’s the latter figure then he’ll allow me a vote when I’m senile, or dead, but not before. And he’ll deny us a vote even in the probable event of a resounding pro-independence party victory in May’s Holyrood elections, and his own party’s likely demotion to third place. And he said all this despite having said only last year that exactly that scenario – a Holyrood nationalist majority – justified a second vote. But in 2019 that wasn’t likely. In 2019 there weren’t polls for yes and now there are. In 2019 there wasn’t a majority for independence, and now there is. So the goalposts are moved. You don’t like my principles? Well, I have others.
Just as Biden will have to ultimately do more than just not be Trump, so Scotland’s democracy must be more than just not nearly as bad as Westminster’s.
Jack’s intervention – and imagine his spluttering outrage if Nicola Sturgeon had used an entire interview to discuss the constitution in the middle of a pandemic (although I wish she would) – reminds us that while it’s easy, comforting even, to watch the American political scene and console ourselves that things could be worse, we need to check our own constitutional snares first.
Alister’s party has six Scottish MPs out of fifty-nine. The party that wishes such a referendum has forty-eight. It also forms the Scottish Government whereas his party hasn’t won an election in Scotland in more than sixty-five years. Scotland voted to remain, but is leaving. Scotland voted to retain the right of free movement but has had it taken from her. Scotland voted for a devolution settlement that is now being ruthlessly undermined on the pretext of a hard-Brexit it overwhelmingly rejected. Nearly six out of ten of us want to vote for normality but are being denied a say on it by the government of a country that none of us choose to live in. Donald Trump threatens to fight the result in court, but if we’re going to talk about the trashing of democratic process then I’d offer that don’t need to look nearly as far as Washington.
Unlike the vulgarian Trump, Joe Biden knows his history. This proud descendant of Ireland would surely concur with the words of one of his old country’s most celebrated sons, the Irish Nationalist Party leader Charles Stewart Parnell.
It was during the Home Rule debates in the House of Commons that Parnell uttered these immortal words:
“No man has a right to fix the boundary of the march of a nation. No man has a right to say to his country, ‘thus far thou shalt go and no further’.
America went further. Ireland went further.
And now so must we.
Keep safe good people. I’ll meet you further on up the road.
Postscript: a note on David Anderson KBE QC
My cousin David’s practice is built on his knowledge of European Union, human rights, public and constitutional law, developed with the help of skills learned working in Washington DC and Brussels, and teaching at King’s College London. He has appeared frequently in Strasbourg (European Court of Human Rights) and Luxembourg (EU courts), as well as in the full range of English courts and tribunals. It’s fair to say he knows what he’s talking about.
He was also, along with his late father Eric, a driving force in reclaiming and preserving the memory of our shared and storied ancestor Eric Milroy, Black Watch gunner and Scotland rugby captain, who died at Delville Wood during the Somme campaign of 1916, aged twenty-eight. He remains my family’s missing link.
A family story is that, for the rest of her life, Eric’s Mother, unable to accept the loss of her son, kept the front light of her Edinburgh house on at night, the better for Eric to find his way home. David keeps that light burning.
Today, more than any other day, he is in my thoughts. “No Keeping Well Back” : Eric Milroy
Alex, a very interesting piece that raises some interesting questions, at least in my mind. If this goes through with all the Lords amendments reinserted does this mean, 1) That Wastemonster is stating that it is OK to ignore International Treaties, then it must be OK for the Scottish Government that the Treaty of Union is ENDED? and 2) As it is illegal Act then it must be OK for any subject to ignore it and claim that to follow Wastemonster’s instructions would be forcing me to commit an offence in International Law?
Just a thought Alex.