European Union (Withdrawal Agreement) Bill

Lord Carlile of Berriew Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Viscount Waverley (CB)]

My point, following the noble Lord, Lord Anderson, is that there does need to be supporting digital, because, for example, a government agency from the UK has on occasion questioned the validity of a Portuguese residency card—I have first-hand experience, being resident in Portugal—as being either fraudulently obtained or else open to counterfeit.

[Lord Carlile of Berriew (CB)]

My Lords, I venture to suggest to your Lordships that it is sometimes wise to address and solve problems before they occur and to avoid the distress that otherwise would occur. In my nine and a quarter years as Independent Reviewer of Terrorism Legislation, I often stood at border posts, airports and sea ports, watching people being stopped, sometimes for absolutely no reason. But, whether there was a reason or no reason, one saw the shades of emotion of the people who were stopped, ranging from real distress to quiet acquiescence. The advantage of the simple measure suggested in this amendment would avoid the distress; it would mean that speeding through the border post really was quick, and we would solve a problem that is bound to occur if we do not resolve it now.

[Baroness Hamwee (LD)]

My Lords, I am glad to follow the noble Lord, Lord Carlile, on that point. In Committee, the Minister thought that I was advocating two separate systems: a digital one and an analogue paper system, if you like. I was not, and neither is my noble friend Lord Oates; he used the term “alongside”.

The Minister was also concerned that a physical document would be forgeable. There are many documents in use which are sensitive and important. Yesterday, I fished out from my office my Disclosure and Barring Service enhanced criminal record certificate. That is on watermarked paper; so is my copy of my birth certificate, a certified copy which is watermarked, though I discovered—I had not realised this—that the seal on it is not actually impressed. So why not have a physical document?

--- Later in debate ---

[Lord Howarth of Newport]

The noble Lords and noble and learned Lord who have already spoken have advised us, rightly, that there are extremely important constitutional issues raised in Clause 26. They have dwelt upon the manner in which Ministers would trespass upon the proper responsibility of the judiciary. I simply add the thought that by taking powers to deal with these matters under regulations, Ministers are also trespassing upon the proper responsibility of Parliament, because Parliament would not be able to give adequate consideration to what could be very important policy decisions by Ministers. They might be seeking to require the courts to consider different tests where environmental policy, or workers’ rights policy and law, are concerned. These must be matters for Parliament to be able to consider fully and deal with in primary legislation.

The adoption of these powers by the Government would be doubly offensive in constitutional terms. The noble and learned Lord, Lord Mackay of Clashfern, has proposed a partial remedy at least that is, as always, both wise and practical. I simply say to the House that if we approve the amendment that he has tabled, and I hope we will, it is no more than damage limitation and does not undo all the mischief that this clause provides.

[Lord Carlile of Berriew]

My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.

I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.

My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.

The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.

[Lord Goldsmith (Lab)]

My Lords, I did not have the privilege of attending the House when Committee took place, but I have read every word of the debate on this clause. It is so powerful to see, I think, three former Lord Chief Justices, a former Lord Chancellor, a former Law Lord, the chairman of our Constitution Committee and other distinguished people speak perhaps not unanimously as to the right outcome but certainly unanimously condemning what the Government seek to do. We have heard it again today; I fully agree with what was said by the noble Lord, Lord Pannick, by my noble friend Lord Howarth and, of course, by the noble and learned Lord, Lord Mackay of Clashfern.

Brexit: UK-Irish Relations

Lord Carlile of Berriew Excerpts

Tuesday 5th September 2017 Lords Chamber

[Lord Carlile of Berriew (Non-Afl)]

My Lords, it is always a pleasure to follow my noble friend Lord Hannay, and I agree with everything that he said with such force. Like other noble Lords, I thank my noble friend Lord Jay for the perfect clarity with which he introduced the debate and join the felicitations to the noble Lord, Lord Boswell.

Because of the delay between the report and this debate, it has now become part of a process, but it is an important part of it because it is evidence-based and contains solid analysis. Another part of that process is the letter that we received from the Minister. It reached my inbox at 3.09pm this afternoon. I think that your Lordships are entitled to be more than mildly irritated by the fact that that letter arrived then, when there were months or certainly weeks in which it could have been delivered, and when we have known that this debate was taking place for quite a long time. But I have now read it, and would like to raise a particular point with the Minister about bullet point 6 —and, frankly, I would like an answer from him tonight, not at 3.09pm before the next 4 pm debate.

Bullet point 6 refers to a “time-limited interim period” that is linked to implementation arrangement and allows for a “smooth transition”. I invite the Minister to unpack that very dense sentence. What are the implementation arrangements that he expects? Would he tell us and define what they are? How does he expect that smooth transition to be negotiated? Is there any evidence of negotiation of a smooth transition, and does that sentence really make transition and destination an unintended synonym? What destination does he predict is realistically achievable—or, as appears to be the case with a lot of the current phase of negotiations over Brexit, does he simply not know?

I want to speak about my experience of Northern Ireland and Ireland. I was the Independent Reviewer of Terrorism Legislation for an indecently long time—from 2001 to 2011. Subsequently, I continued to visit Northern Ireland very frequently in some non-statutory roles that I carried out. I had the opportunity to meet all the political parties on a fairly frequent basis; sometimes they spoke to me and sometimes they decided not to speak to me, but on the whole they were very co-operative and I learned a great deal about their mindsets. On one occasion, I went to South Armagh not long after it had been described as “bandit country” with the elected Sinn Fein Member for the relevant constituency, and I saw with him the extraordinary developments that had taken place—the fact that there was an active and representative democracy taking place in an area where, if I had gone there on my own 10 years before, I would almost certainly have been shot at.

I believe that Northern Ireland has become a good place to live and run a business, a very good place to educate your children—it has an outstanding education system—as well as a good place to have social housing. The government funding made available to Northern Ireland has been substantial. At least two, and maybe more, Secretaries of State in this House contributed to those developments, to their great credit.

I am terrified of the possibility that what has been achieved in Northern Ireland will in any way be lost. I refer briefly in particular to three of the conclusions of the report that we are debating. The one at paragraph 142 says:

“Political stability in Northern Ireland depends on the confidence of both communities that their interests are being respected”.


That is said with particular reference to the land and sea borders. The report concludes at paragraph 152:

“Brexit has profound implications for the current high levels of crossborder police and security cooperation between the UK and Irish authorities”,


and at paragraph 183 states:

“The peace process is supported by a majority of people from across the communities, and it would be irresponsible to overstate the threat posed by Brexit”.


Nevertheless, Brexit is already proving politically divisive and all sides must remain vigilant to ensure that the momentum behind the peace process is maintained. I regard those three principles—from my viewpoint, as somebody who has been concerned with counterterrorism and observing the effectiveness of the peace process—as absolutely non-negotiable and crucial.

This brings me to the role of Parliament. I thought Keir Starmer spoke very cogently on behalf of the Labour Party last week when he said that we must respect the outcome of the referendum, and I do. However, I also agree with him that Parliament continues to have a role. We cannot hand over to Government a discretion to do what they like. Equally, if the negotiation does not reach a conclusion, or reaches a bad one, that is not a trigger for a new referendum—that would be irresponsible. It is the trigger for this House, and Members elected to the other place, to say, “I am sorry. This will not do and we are not going to allow it to continue”. One of the key issues in that exercise of parliamentary responsibility in due course is what has happened in Ireland, particularly in relation to the peace process in Northern Ireland and the continuity of the beneficial developments there. We surely have to resolve this quickly. This is one of the most obvious questions, with the most obvious answers, of anything in the Brexit negotiations. If we and the European Union cannot sort this one out quickly, what hope is there of resolving any questions?