Critics were wrong to frame the row over the UK Internal Market Bill as a challenge to the rule of law, the lord chancellor has said, declaring that the rule of law should be a concept ‘above party politics’.
Addressing a UCL conference this morning, Buckland said the rule of law was not a legal concept but a concept of ‘political morality about the way in which we are and should be governed. One which should be above party politics’.
The Internal Market Bill was an example where ‘the tension was a political one but reframed incorrectly in a constitutional way and ‘descended into allegations of breaking the law’. The bill set out how powers held by the EU would be shared out after the Brexit transition period ended. The then Northern Ireland secretary said it would breach international law ‘in a very specific and limited way’.
Questioned later about his comments, Buckland said: ‘Without breaking any confidences, the ultimate debate at the time of the [bill] was really about stages and when it was that clash would come. I took the view that in these difficult political circumstances, where there could indeed be that clash of laws if certain outcomes were pursued, that would be a legal problem.’
Buckland said there were a number of checks and balances in place. The EU and UK ‘worked through the system and came to a sensible conclusion, an agreement that meant those provisions were never necessary’.
He added: ‘You can criticise it as a political policy or political tactic or strategy. There were arguments about whether it should have been introduced at the beginning of legislation or potentially as an amendment. But what I do think is there was some overreach, people were saying fundamentally the rule of law law itself was being challenged as a result of that. The events that unfolded vindicated the position I have told.’
Asked to provide an example of where the courts have gone too far, Buckland cited the Supreme Court’s ruling in R (Evans) v Attorney General in 2015. The Supreme Court overturned a veto by the attorney general and allowed publication of letters written to government ministers by the Prince of Wales.
Buckland said: ‘What happened is that, in effect, the clear intention of parliament was frustrated. I do not criticise the judges. I can understand the concern the Supreme Court had that judicial decisions can be trunked by the executive. But I thought that legislation was pretty clear. My submission [is] that decision was not the right one… I think that’s an example where frankly I was somewhat puzzled to say the least to where we ended up.’