John McDonnell, the ICJ and another empty House of Commons

Michael Murray

(The photo shows the International Court of Justice in The Hague, Netherlands)

On the 19th of March last, Labour MP John McDonnell tweeted: “The Government is sending arms to Israel that may be being used in attacks on Gaza, which under ICJ judgement may be war crimes. I have asked the Speaker to seek & publish legal advice on the responsibilities of MPs in preventing the Government’s complicity in war crimes.”

This took the form of a “Point of Order” raised in the House of Commons with the Speaker of the House, the highest authority in “This Place,” as its  habitués like to call it (I think I’ve  even heard George Galloway refer to it as that.)

The Speaker’s primary function is to preside over the House of Commons. According to parliamentary rules – which includes “points of order” – he has the say over how its business is conducted, including deciding what is a genuine “point of order” and what isn’t. The Parliamentary guide says: “You can use a point of order to get guidance from the Speaker in the Chamber on a matter of House of Commons procedure.” (MP’s Guide to Procedure: Points of Order)

 “The Speaker is supported in his work by three Deputy Speakers. On the occasion of this sitting, it was one of those Deputies who was in the Chair.  It will become clearpresentlywhy this is relevant to how John’s contribution was received. 

This sitting was a follow-on from a preceding debate on Gaza, which John had attended – but it appears, from the Parliamentary TV recording – that attendees at that meeting gave John’s “point of order” a miss, as only approximately 50 MPs were present out of a potential 650.

I counted two MPs loitering on the Opposition front bench, motionless and silent.

YOUTUBE LINK:  John McDonnell calls out the UK’s complicity in Israeli war crimes in Commons speech –  PoliticsJOE   

(Title inappropriate, as you’ll see. This was a very relevant “Point of Order,”  well structured. In the parliamentary filmed record and in the original transcript of the film itself, the pre-edited, pre-tidied up version cut and pasted here you will see how the Government minister attempted to dismiss it as being irrelevant.)

Deputy Speaker: Point of Order, John McDonnell.

John McDonnell: “Madam Deputy, I’ve sat through the statement this morning and listened to the various questions that have been raised with regard to the supply of arms to Israel. It’s quite clear the government is continuing to supply arms to Israel some of which would have been used on the attacks on Gaza some of which of those attacks have been judged to be contrary to the ICJ judgment and they are potentially war crimes. 

Can I ask the Speaker therefore to seek and publish legal advice on the legal responsibilities of individuals of this House in holding the government to account to prevent complicity in those war crimes and so that we all aware of our responsibilities and the role that we have to play, as the Government receives its Authority from this Chamber?” 

“We need advice as individual members separate from government and that’s the responsibility of the Speaker: to ensure that we’re properly advised about our responsibilities when we believe there’s the potential complicity in war crimes.

Deputy Speaker: Well my initial response would be um that obviously um the minister has come here has answered a number of questions um with regard to um the issues that he raises um I  feel that he is indicating that he perhaps may be able to help me out a little in terms of um legal advice. But um I feel it would be it feels highly unusual for the Speaker to seek legal advice on an issue of ing (? Indistinct) the government because the government obviously gets its own legal advice. But perhaps we could hear from the Minister before we go any further.” 

You see what’s happening here? This is a point of order directed, as it can only be, to the Speaker. But she asks the Government Minister to ‘help her out” with a point of order coming from the Opposition benches. 

The Minister proceeds in his next contribution to accuse John of abusing the “point of order” in order to reopen the prior debate – a common ploy, but John has established the validity of his intervention. And, if he hasn’t, the responsibility, duty even, is that of the Speaker to rule it “out of order.” But she just flaps around, out of her depth, while the Minister waffles on, probably missing the point of what John was saying, or, out of his depth also?

Minister:  “Thank you very much Madam Deputy Speaker. Further to that point of order the right honourable gentleman is an extremely experienced member of this house and he is seeking to continue the subject of the urgent question uh ingeniously in in what he says he knows perfectly well uh Madam Deputy speaker that the government. operates under a rule of law when it comes to arms sales. 

“The arms regime, the work of the arms uh inspection committee uh those are matters all determined by the law of the land and when it comes to International humanitarian law the position is precisely the same. The government takes advice from the Law Officers who are charged with these matters and who uh advise the government and the government acts upon that advice. “

Deputy Speaker:  “That if I may just say that is rather the point I was uh trying to make but obviously the minister um who is um uh I’m sure very often working with legal advisers um was able to answer it much more um uh coherently than I was um so I I’m not sure we can we can pursue is much further, But I will let the right honourable gentlemen have one more go but I think we’ve sort of reached the end of um uh of of the questioning after this.” 

John McDonnell: “I’m not trying to extend the debate at all. This is an incredibly serious point. The minister has just said the government is operating under the rule of law. Some of us believe that’s not true anymore because of the way the ICJ Judgment was phrased and therefore we need advice as individual members separate from government and that’s the responsibility of the Speaker to ensure that we’re properly advised about our responsibilities when we believe there’s the potential complicity in war crimes. All I’m seeking is that advice is sought and published.” 

Deputy Speaker: “Well as I say I think first of all the government uh performs within the legal advice that it is receiving um not least from the Attorney General. Um there are separate obviously legal proceedings going through the um ICG (sic) and I don’t think it would be um for members of this house to be interfering in that process either um. 

“The right honourable gentleman will know that obviously individual members of the House have the right to seek legal advice. His comments will have been heard um and if there is anything further to be added to them, I know that the Clerks will advise us whether uh we should return to this. But I think it would be highly unusual that the right honourable gentleman’s request um in terms of um specific legal advice to the Speaker. 

“If there is anything I need to add to that I can assure the right honourable gentleman I will come back to him.”

What a note to end on !   

And the Deputy Speaker did refer to the International Court of Justice (ICJ) as the ICG. It can be clearly and distinctly heard on the taped record. But you could forgive her that.  

“Obiter Dicta” –  Legal term: Pro-Deep observations made “in passing”

What both the Minister and the Deputy Speaker could do with is having a look at a copy of the Select Committee on the Constitution Report which dealt with the “United Kingdom Internal Market Bill, and the highly controversial issues, around devolution and northern Ireland, all exacerbated by the far from “oven ready” Brexit. 

As in the ICJ case discussed above regarding Gaza, broader legal issues and principles are involved. I’ve selected those with most relevance to John McDonnell’s “point of order.”  

To begin with, Sir Franklin Berman,  QC’s observation: “There was a danger in assuming that legal obligation is just a matter for the lawyers.  Legal obligation is a matter for all of those who are involved in the question of compliance and potential noncompliance.

Paragraph 219 also says: “Civil servants are under a duty to comply with the law. The Government should not put them in a position where they risk breaching that duty.

I don’t thinkthe Minister featured in the Parliamentary report – whose name I don’t know, because the relevant Hansard edited printed record isn’t available to me as this article goes to print – has any sense of MPs having an such obligation. 

It is a dereliction of duty for all those concerned in the process, including in Parliament itself, not to take account of the potential implications [of the Bill], not simply for the United Kingdom’s international obligations but for its international standing.”148

Finally, and, perhaps most relevant of all to John’s acceptance of his legal obligation – and those of his colleagues, Paragraph 215: “The Law Officers play a crucial role in advising the Government on the legality of its actions. Other ministers look to them, and to the Lord Chancellor, for guidance on the legal implications of the Government’s actions. Parliament may look to them for legal clarification and reassurance.” 

Bingo !

Select Committee on the Constitution
United Kingdom Internal Market Bill

17th Report of Session 2019-21 – published 16 October 2020 – HL Paper 151