Ken Clarke says government acting like a ‘third-world dictatorship’ over Brexit

He told the House of Lords: “I served in governments and cabinets for many years with men such as my noble friend Lord Howard and my noble and learned friend Lord Mackay.

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“No government that I served in would for one moment have contemplated some adviser somewhere, or some junior minister, presenting a Bill of this kind; it would have been rejected instantly as being incompatible with the way that we govern this country.”

He continued: “It is not only immoral as a piece of legislation; it is intrinsically ridiculous and deeply damaging to the reputation of this country.”

Watch the full speech and read the full text below.

My Lords, it is a rather remarkable experience, as quite a new Member of this place, to find myself taking part in such an extraordinary and unusual debate, loaded with such significance and ethical and legal issues. It was a pleasure at Second Reading to follow a debate in which the eloquence of the noble and learned Lord, Lord Judge, the noble Lord, Lord Howard, and many others was extremely persuasive. I followed their speeches, which came to a dramatic conclusion when I found I was taking part in Divisions in which the Government suffered their biggest defeat in this House for over 20 years on a resounding and distinguished cross-party basis.

My first reaction was to think that, before we got to this stage, the Government would react in some constructive, positive way. I may be new here, but I have been a few years in government, and in the past, the problem would have been regarded as a fairly extraordinary one. Efforts would have been made to give the unfortunate Minister, who had drawn the short straw of defending the Government in this House, some material and opportunity to persuade, reach a compromise and perhaps move to the more pragmatic approach of the noble Lord, Lord Lilley, because this should all be resolved in a common-sense way.

However, the first thing I notice, speaking today, is that government Ministers, whose responses I hear and read, have not shifted one iota. The debate was one of those things. They have trivialised their defence of the Bill, in saying it is a contingency only, which they hope not to invoke. “It is one of those things one has to do, if we decide it is necessary to defend the integrity of the Northern Ireland economy.” I have not heard any addressing of the ethical issues of breaking the law on this scale from any representative of the Government. I have not heard anything other than the most general broad-brush explanations of what they want to do if ever they use these powers.

I find this lack of any reaction and the assumption of the Government that they will probably get their way in the end, if they persist in Parliament, quite remarkable. The scale of what we are being asked is remarkable. We are being asked to give Ministers complete discretion, in whatever way they eventually feel fit, by secondary legislation, to defy any aspect of domestic or international law. WTO rules, for example, are normally revered by the present Government but, ​if necessary, would be set aside under the terms of the Bill—as, certainly, would our treaty commitments, recently entered into.

I again would have expected some explanation of what dire circumstances the Government were contemplating to justify such an amazing break from our traditions, as a liberal democracy and one of the world’s principal upholders of the rules-based international order. There is no specificity. I have not heard anybody describe a particular proposal being forced upon us in these negotiations by Brussels, which would have such a horrendous and catastrophic consequence as to allow us to behave like the Government of a third-world dictatorship in giving our Executive the discretion to do what they like with their legal obligations.

The circumstances that gave rise to the Government’s decision to bring the Bill are not unexpected, in that there could well be barriers to some trade—costs, at least—across the Irish Sea. That was part of the deal the Government entered into. It was the whole basis of the negotiations between Boris Johnson and the then Taoiseach, Mr Varadkar. They agreed on a solution that, in my opinion, is much inferior to the three deals that Theresa May tried to persuade us to accept. Their deal is that Northern Ireland must remain in the single market and customs union, and the remainder of the United Kingdom, Great Britain, is to leave it. The whole point was a customs frontier down the Irish Sea. It was not a detail concealed from the public; it was set out in carefully negotiated legal texts. Both Houses were persuaded to agree to it, and the noble Lords, Lord Empey and Lord Dodds, and others openly expressed their opposition to this fundamental aspect of the deal that was going through. The Government endorsed and recommended it and then, with the approval of both Houses of Parliament, ratified it as a treaty. Only now have they changed their minds.

Of course it is undesirable to have costs at the border. I would like to see customs and export and import costs at Dover kept to a minimum. I certainly do not want to see tariffs or quotas on any trade between the United Kingdom and the European Union. I hope the negotiations are conducted sensibly and produce the minimum friction and cost. On the particular circumstances of Northern Ireland, the Republic of Ireland Government would be as enthusiastic as ours to make sure that any pragmatic solution, along the lines of those recommended a moment ago by the noble Lords, Lord Lilley and Lord Dodds, should be sought and, I hope, achieved.

The Government, however, have not waited for the outcome of the negotiations. Suddenly, they have produced this Bill. This rather Donald Trump-like gesture, this legislation, appears to have been produced in a moment of panic somewhere about the way negotiations were going, because for various reasons we have got so desperately short of time in which to conclude a hugely important agreement about our future relationships. A panic decision—saying, in defiance of our constitutional principles: “Just in case things go wrong, can we have these absolute powers?”—is no way of proceeding. It is far from the sensible policy basis of proceeding that the noble Lord, Lord Lilley, was recommending, using sound arguments about common sense and pragmatism. This is not that; it is a ​unilateral declaration: “Please, if all else fails and we are not sure where we are going, could the Executive have unfettered discretionary powers to break legal obligations of every kind if, in the end, between now and the end of this year, they feel it necessary to do so?”

I will not go on, because I have already made it quite clear that I would find it absolutely unbelievable if such a piece of legislation found its way on to the statute book. I served in Governments and Cabinets for many years with men such as my noble friend Lord Howard and my noble and learned friend Lord Mackay. No Government that I served in would for one moment have contemplated some adviser somewhere, or some junior Minister, presenting a Bill of this kind; it would have been rejected instantly as being incompatible with the way that we govern this country.

It is, therefore, the duty of this House to reject this and, as my noble friend Lord Cormack said, it is an issue of such principle that, rather than having just one symbolic vote and then agreeing that the other House should prevail, this goes beyond that and the full extent of the constitutional powers of this House should be used to stop this, because the consequences for the country would otherwise be appalling.

In this new global world, Britain will have to negotiate a large number of trade arrangements with many countries—friends of ours—throughout the world. Behind all the necessary negotiations in the new post-Brexit order, the one thing that we will need is to be able to negotiate with people who trust us. At the moment, it looks as though we are going into negotiations with the Americans and everyone else saying, “Yes, we will solemnly enter into a treaty that will of course involve some pooling of sovereignty and remedies for resolving disputes, and we will abide by it—unless, of course, in a few months’ time we decide that we will not, in which case we will get our Parliament to give us complete discretion to do whatever we like.” It is not only immoral as a piece of legislation; it is intrinsically ridiculous and deeply damaging to the reputation of this country. I hope that we will all act as we have all been saying this evening.