Northern Ireland (Executive Formation) Bill

Lord Carlile of Berriew Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Carlile of Berriew (CB)]

As—I feel I should state—the husband of a former partner in Mishcon de Reya, can I ask the noble Lord, with his distinguished record of parliamentary and public service, how he would like to limit the ambit of judicial review, which is the way in which citizens challenge administrative action that has been called into doubt?

[Lord True]

Whether judicial review should be limited will be a matter for whichever judge the case is put before. My submission is that this is an inappropriate use. The irony when it comes to judicial review is that most JRs of Jeremy Corbyn would come from the Labour Party itself.

Amendment 7 is not a question of allowing Parliament to decide on Brexit. Parliament asked the people to decide the question; the people decided. Parliament voted to invoke Article 50. This Parliament, in this very Session, voted by overwhelming majorities to leave the EU. Parliament has set the law of the land that we should leave on 31 October. It is not a question of anyone stopping Parliament deciding; Parliament has already decided.

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[Lord Forsyth of Drumlean]

I do not think for a moment that he is, and I do not think that the House of Commons is able to challenge our leaving on 31 October unless it and this House pass the necessary legislation to do so. If this House is worried about the timetable and the opportunity to do so, that is a much bigger problem than the timetable for any Prorogation.

[Lord Carlile of Berriew]

My Lords, it is always a pleasure to follow the noble Lord, Lord Forsyth, who is one of the most persuasive debaters in this House, as he was in the other place. However, I am concerned by what he said a moment or two ago. He seems to have forgotten that we do not have an executive form of government in this country. If it is Mr Johnson who becomes Prime Minister, that is what he becomes—Prime Minister, not president of the United Kingdom. The role of the Prime Minister is surely to face Parliament, the House of Commons in particular, persuade it if he can and serve it if he retains its confidence. If he loses its confidence, it becomes his duty to resign, which could happen more quickly than some, particularly Mr Johnson, think.

[Lord Forsyth of Drumlean]

If I may respond to that point, what the noble Lord says is absolutely right, but the Prime Minister also has a duty to obey the law. The law is that we are leaving on 31 October. If Parliament does not like what the Prime Minister does, it can pass a Motion of no confidence, and then we will have a general election. If we end up with a general election in those circumstances, I am not sure the noble Lord will get what he wished for.

[Lord Carlile of Berriew]

The noble Lord chided the number of lawyers taking part in this debate. I have certainly practised law, but, if I may say so, and with great respect, what he has just said shows how little he understands the law of which he has complained.

To turn back to the thread of what I was going to say, I have spent 34 of the past 36 years of my life as a Member of one and then the other of these two Houses of Parliament. I listened to the eloquence of my noble friend Lord Anderson with great attention. I must tell him that I am extremely reluctant to vote for his amendment because, as a parliamentarian of 34 years, I do not like to see the rules of the two Houses of one of the most distinguished Parliaments in the world used as part of a parlour game—as devices.

But then I listened to the noble Lord, Lord True, and, with great respect to him, I realised that the true democrats in this debate are the noble and learned Lord, Lord Goldsmith, the noble Lords, Lord Anderson and Lord Newby, and the noble Viscount Lord Hailsham, who tabled this amendment. My reluctance is overcome by my wishing, as they do, to sustain the law and sustain—I use that word advisedly because I am not ashamed of using it—the traditions and democratic role of this Parliament, including the role played by your Lordships’ House.

I fear that what is being advised to the Committee by the noble Lord, Lord True, and what appears to be in the mind of Boris Johnson, is to drive a carthorse through parliamentary procedure and simply leaves the debris as an acceptable part of what occurs. It shows that they do not understand the fundamental constitutional nature of the referendum and the process that followed it. It was not the duty of this Parliament simply to leave the European Union just like that. It was the responsibility of this Parliament, having been advised by the population in the referendum to attempt to leave the European Union in a way that did not destroy the economy or the political structure of this country. In my view, that requires the attention of Parliament to the very end, not the frustration of the law.

If I have to, I will reluctantly vote for the amendment, but it could all be resolved so simply. All Mr Johnson has to do is to pick up the telephone—with a witness or maybe several witnesses present, I hasten to add—and say to the noble Lord on the Front Bench, “I have been very badly misunderstood. I give a clear undertaking that I will not prorogue Parliament so as to frustrate the very purpose for which it exists”. Then I would not have to vote reluctantly for something that I do not really like.

[Lord Adonis (Lab)]

My Lords, the critical issue, which the noble Lord, Lord Forsyth, would not answer in my noble friend’s question, is whether he actually favours Prorogation. It is important that we get to the substance of the issue, which is very clear. Is it a responsible or legal act, in the view of the two Houses of Parliament, to ban Parliament from meeting to discuss the affairs of the nation in September and October? That has never happened before. The noble Lord, Lord True, said that there have been Prorogations in October. But there is a long-established convention to this effect. Prorogations are for a few days before the new Session of Parliament. The Library has produced a note that lists them all. They are of five days, six days or three days. In one case, it overlapped with the Whitsun Recess and was for 20 days. They have been of 12 days, seven days and three days—always for the purpose of preparing for a new Session of Parliament.

The noble Lord referred to the supposed controversy of 1948. There was no controversy in 1948. The two Prorogations to create the additional Session required by the Parliament Act 1911 lasted one day each. There was no controversy about the Prorogation. Of course, as the noble Lord, Lord Forsyth, said, there was controversy about the nationalisation of iron and steel. That was because the Conservatives did not want it and Labour did. It had been in the Labour manifesto and Labour sought to implement it. But there was no controversy about the terms of the Parliament Act 1911.

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Clause 9 overstates the obligation that the UK is under, and I believe that noble lords and noble Baronesses in this Committee have overstated that obligation too. There is no international obligation to introduce abortion in Northern Ireland; rather, the obligation, both moral and based on the principle of devolution, is quite the opposite.

[Lord Carlile of Berriew]

My Lords, I have listened to the debate with growing concern and anxiety about its tone and about what seems to be a very poor understanding of the constitutional issues that arise.

We ought to remind ourselves that we have been talking about moral issues that affect young women and young men of an age that does not exist among the membership of this House. Those of us who are the fathers and grandfathers and mothers and grandmothers of young people ought to bear that in mind. We have listened—I do not want to offend anyone but I will take the risk—to a lot of anecdotally based, at best, moral relativism, which to those who eventually come to read what has happened in this House today, particularly the young, will view as uninformed, if possibly well-intentioned, and with disdain.

The only evidence that I can rely upon is the evidence that I see with my own eyes and in my own experience. I can tell your Lordships that among my five daughters and step-daughters and my nine grandsons and grand- daughters, I have one daughter who is in a very happy gay marriage to our beloved daughter-in-law and another daughter who was in a gay civil partnership and is now married to a man, as a result of which we have a beloved former daughter-in-law and a beloved son-in-law. That is what real life is like. When you look at what happens in real families in these issues, without pontificating about what they should be thinking or, even worse, thinking for them, you see things in a much more realistic light.

I turn to the Bill and the constitutional issues. I repeat what was said by my noble and learned friend Lord Judge about Clause 3(6), which expresses that these changes are,

“subject to a sunset clause to respect devolution”.

The Bill seeks to do almost exactly what those who have proposed these amendments are asking for; it just does it in a coherent and logical way. I have spent a great deal of time in Northern Ireland, looking at the Good Friday agreement and working as Independent Reviewer of Terrorism Legislation. If you asked the good people of Northern Ireland what they thought about these issues, their answer would be, “Well, we’re not terribly interested in these issues as a constitutional matter, although we have opinions. What these wretched politicians should get on with is governing Northern Ireland by devolved government, which they are choosing not to do at the present time”. Devolution is not a right but a choice. The politicians of Northern Ireland have chosen not to govern their country through devolution at the present time.

So what happens to the political process in Northern Ireland? Does it come to stasis? Does it come to a standstill because the politicians cannot sit down in a locked room for a few days and realise that their duty is to govern that very important part of the United Kingdom? That is the choice they have made so far. When that choice has been made, it is constitutionally the duty of the Parliament in which we sit to determine all the issues that a devolved Government would consider, including these enormous social issues. Northern Ireland’s constitutional settlement, which produced the miraculous results of the Good Friday agreement, which I admire without a single word of demur, sets out and accepts that when there is no government by devolution, there is government from this Parliament. In my view, this Parliament is perfectly entitled, and under a duty, to take the decisions set before it this evening.

[Baroness Smith of Basildon]

My Lords, this has been a long debate. When the noble Lord, Lord Cormack, spoke at the beginning, he said this was sensitive, delicate territory. He is right. I have close friends on both sides of the argument and I resent it when people abuse the integrity of those who have a different view. All views should be respected in this House. The tone in which some comments have been made does not reflect well on this House. That point was made by the noble Baroness.

Coming back to the comments of the noble and learned Lord, Lord Judge, about what we are debating tonight, which were moderate as always, I have not written a speech like some noble Lords, but I have a couple of comments. I think one of our colleagues from the DUP described this as a process which was not procedurally correct—

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Carlile of Berriew Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

Respectfully, it appears to me that we have demonstrated that throughout the process.

[Lord Carlile of Berriew (CB)]

My Lords, can we return to the legal advice, which is the subject of this Statement? Does the noble and learned Lord agree that the legal advice has not changed at all—yes or no?

Further, if we adopt his attractive metaphor about Italianate sculpture, does the Minister agree that if yesterday’s breathless Statement from the Prime Minister, anticipated in the House of Commons, is a fig leaf, if we lift that fig leaf, we will find that behind it are no parts whatever? To proceed towards an impossible, extreme scenario, as suggested by the noble and learned Lord himself, is something that a skilled lawyer in private practice, as the noble and learned Lord has been, would say to every client, “You can’t do it”.

[Lord Keen of Elie]

My Lords, as regards the legal advice, I refer back to paragraph 7 of the Attorney-General’s letter, in which he said that the,

“Joint Instrument extend beyond mere interpretation of the Withdrawal Agreement and represent materially new legal obligations and commitments”.

To that extent, we have moved on. But of course, he also made absolutely clear that the legal risk that had been addressed in the context of whether there was a unilateral right to leave the backstop had not changed and that there was no internationally lawful means of exiting the protocol’s arrangements except by agreement. But context is everything.

On the second point, there appear ample grounds for supposing that, in taking this forward, we will arrive at a resolution of an issue that troubles lawyers but I suspect does not trouble politicians quite as much: whether or not the backstop is somehow a black or white outcome. It is not an outcome that is anticipated nor one that we believe we will have to address, and if we have to address it, we do not believe it will ever be permanent, and that for political reasons alone.

Brexit: Negotiations

Lord Carlile of Berriew Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, some two and a half years have passed since the 2016 referendum. My concern in this debate is the role of Parliament now, after not just that referendum but the reaching of the draft agreement we have in front of us. I agree with what I regard as the very cogent arguments made by the noble Lord, Lord King of Bridgwater, and my noble friend Lord Hennessy.

I suggest that our task as parliamentarians, particularly in the other place now, must surely be to cut through the recriminations and posturing which have been so clear in the last few years and clear the path to a solution, without running back to the people on the basis that we are not fit to do our duty as parliamentarians.

Parliament was advised strongly, but not enslaved, by the 2016 referendum. The Government have done their duty, in the sense that they have negotiated and presented us with a settlement of a kind, whether we like it or not. I note that the negotiations for that settlement were conducted by two strongly Brexiteer Secretaries of State, neither of whom advocates no deal as being a felicitous result. As many in this debate have said, it would be a disastrous result for the United Kingdom. I suggest that surely it is now time for Parliament to exercise its judgment. It was neither a constitutional nor empirical requirement that we should leave the European Union come what may if the result of the negotiations was contrary to the national interest.

There has always been a clear inference—and, I suggest, a constitutional requirement on us as parliamentarians—that the deal obtained should be considered on its merits by both Houses of Parliament and accepted or rejected accordingly. I fear that the current political drama—many in the Conservative Party will recognise this—has been forced on us by internal disputes within that party. I observe and venture—kindly, I hope—that now may be the time for Conservatives, particularly in the other place, to recognise that they cannot all have their own way or, to coin a phrase, “scweam and scweam”. The interests of our country should be placed above their own perceptions.

My conclusion is that there are only two realistic options, given that no deal is so plainly contrary to the national interest. Either we accept, subject to what appear to be available nuance changes, the still-available deal negotiated and agreed in Cabinet by Mr Raab before his somewhat unusual resignation the day after a passionate declaration of Cabinet responsibility; or we reject that deal and abandon the whole Brexit project as having produced a result contrary to the national interest. Those are the alternatives that should be placed before Parliament and on which Parliament, especially the other place, should exercise its responsibility with as little delay as possible.

[Baroness Goldie]

My Lords, time is now very tight. I ask your Lordships to watch the clock like a hawk and, when it reaches four minutes, please resume your seats.

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[Lord Keen of Elie]

My understanding, as I said before, is that the Prime Minister is going to be meeting with Mr Juncker in the very foreseeable future and that the discussions are going to be taken forward. As to when the final political statement will be concluded, I cannot give a specific date but the intention is, as previously stated, that it should be available by the end of November. I cannot say when it will come before Parliament; at this stage I cannot give a definitive date from the Dispatch Box, but I am quite willing to write to the noble Lord if I have any further information on that point.

The noble Lord, Lord Kerr of Kinlochard, mentioned Article 50 and has previously observed that he had a hand in its drafting. As a general rule of law, one does not submit subjective evidence over the construction of a contractual provision, and there are very good and compelling reasons for that. However, I note what he has to say about the idea of the EU 27 being prepared to stop the clock. With great respect, it appears to me that the indication is: “Let us get on with it. Let us go forward. We have an agreement for withdrawal. Let us implement that. Let us then address how you are going to leave”—because we are going to leave the European Union on 29 March 2019.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, made his maiden speech today. I thank him for that and compliment him on his contribution to the debate. It was suggested that he should not have used a maiden speech to be controversial, but I would not take issue on that. It is a matter of deep concern to the noble Lord and his fellow Peers from Northern Ireland that we should address the matter of the border and the integrity of the union in this context, and I fully understand his concerns, but I cannot accept that Northern Ireland is either a hostage or a sacrifice in the circumstances. Far from it: our concerns lie in maintaining the union. In so far as he suggested that a hard border was a fictitious idea and could be managed, I do not disagree with him. That is one reason why we anticipate that the backstop will not be required. But, as it is, the people of the United Kingdom of Great Britain and Northern Ireland have spoken as a United Kingdom, and their decision is that we should leave the European Union.

The noble Lord, Lord Carlile of Berriew, pointed out that the role of Parliament must be remembered. Like him, perhaps, I am a Burkean on the issue of representative democracy. He said, and I agree, that there should be no running back to the people. It is for Parliament to consider the present withdrawal agreement. It is for Parliament to accept or reject that withdrawal agreement. It is for Parliament to address the consequences of its actions, and it answers to the people in a representative democracy. I agree with much of what he said about the process that we should be going through in this context.

[Lord Carlile of Berriew]

I am very grateful to the noble and learned Lord for giving way, but on that point, dredging up his experience of representative democracy, does he agree that when a Government put forward a proposition in the House of Commons and it is defeated, the normal course is to revert to the status quo ante?

[Lord Keen of Elie]

That might be the normal course, but it is not the invariable course. We have to look forward to how the Government will proceed in the context of the present process, where they present their agreement to the House of Commons, where it will be subject to consideration. I shall not anticipate that outcome, although, like the noble Lord, Lord Desai, I take the view that there is every prospect that the House of Commons, having examined this agreement —I am amazed at how many people commented on it before they could conceivably have read its 580 pages—will find that it takes us forward towards the goal that we were set as a result of the referendum.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, the amendment was moved with eloquent brilliance by the noble Lord, Lord Patten. I want to add a few words based on my nine and a half years’ experience as the Independent Reviewer of Terrorism Legislation and the close interest that I have taken in Northern Ireland, and specifically the border, since then. Before I do, however, and with the greatest respect to the noble Lord, Lord Alderdice, whom I admire greatly—I mean that genuinely—may I point out to him that he may have misunderstood the words of the part of the amendment that he just referred to? The amendment does not allow an intergovernmental requirement for security checks. There is absolutely no question that security checks will be required from time to time. I have been in security checks myself from time to time in Northern Ireland and they have been put in place and removed ad hoc extremely quickly. I have seen them happen at extraordinary speed within minutes. So I ask the noble Lord if he would not mind having another look at that part of the amendment before encouraging other noble Lords, if there is a vote, to vote against it or by voting against it himself.

I have spent time in Northern Ireland, including time with Sinn Féin Members of the legislative Assembly. I regret very much that Sinn Féin MPs do not take their seats in the other place. They could make a very useful contribution on the subject of Northern Ireland and Ireland in general. I disagreed with an awful lot of what they did before, but my observation from the time that I have spent with them, including, on one occasion, making the journey from Belfast down to South Armagh and observing how the person in question operated as an elected representative in that part of the world, is that they have committed themselves to the constitutional arrangements which appertain in Northern Ireland. That is because of one event: the Good Friday agreement and all that has flowed from it. A large number of institutions have been built as a result of that agreement. If we look at the membership of the legislative Assembly when it sits, particularly at the identity, experience and backgrounds of today’s Sinn Féin Members, most stand as elected representatives whose integrity could be compared to almost any other legislative body in Europe. We have come an incredible distance over those years.

On the present situation, I have heard all the encouraging words from the Government—and rather less encouraging words from the European Union—that there will be a resolution of the Northern Ireland situation. But it has not happened. In my view, we are no nearer to a solution being presented by the Government than we were in Committee or a year ago. The situation today, on Report, requires us to vote for this well-constructed amendment because this will tell both our Government and the European Union that this is a subject that cannot be neglected. Indeed, this subject should never have been part of Brexit. It is something that should have been negotiated in the first week so that we were not sitting in your Lordships’ House worrying—and this is the greatest worry of all—about Brexit as we approach, rather more quickly than we would have wished, 29 March next year.

We must give every bit of encouragement to an early solution of this problem that does not involve any of the difficulties that we have talked about time and again in this House. If the matter is put to a vote, I encourage noble Lords to go with the noble Lord, Lord Patten, and to follow his eloquence into the Content Lobby.

[Lord Eames (CB)]

My Lords, a few weeks after the result of the referendum was announced, I ventured to suggest to your Lordships’ House that the question of the border between Northern Ireland and the Republic would suddenly become crucial to the outcome of the Brexit negotiations. On that occasion, several noble Lords told me not to worry; I was told that, like all things, it would find its own place further down the line on a coming day.

With what I hope is self-imposed humility, my feeling now is “I told you so”—not because of a line on the map that could be easily seen in any atlas, but because of the symbolism of what that line stood for in the development of the island of Ireland, particularly Northern Ireland. That line is no longer our border; it is your border. It is our collective border with the EU, so some of the significance of what has worried us in continuous Brexit debates takes on a new light for one simple reason: the people of Northern Ireland are not on their own in worrying about the consequences of the border. It is of equal concern, as it should be, to the people of Scotland, Wales and England—the United Kingdom—and because of that, a growing apprehension is developing in Northern Ireland that, if I may say so, we will be left to carry the can. In the light of what has already been said, this is an extremely dangerous apprehension and situation. As has been said by the noble Lord, Lord Patten—not only today but previously —connection with the symbolism of the border touches on culture, politics, social media and education. It covers the entire breadth of the concerns of the people of Northern Ireland.

When I began my professional career more years ago than I care to remember, it would have been unimaginable to talk about the relationship between Northern Ireland and the Republic as we do today. Progress has been made, due not only to political understanding and growing maturity on both sides but, equally, to our having come through the chequered history of the past 30 or 40 years. There is a lot more hanging on this debate than simply the security and arrangements on the border. The reversal—or the danger of the reversal—of all that has been achieved is at stake. The peace process is still a growing infant. The absence of an Administration at Stormont makes it very difficult for one aspect of progress—the cross-border institutions—to work at the moment. A lot of us put faith in those institutions because they were doing practical things in practical ways but now, with the Administration at Stormont absent, it is difficult.

On first glancing at the wording of the amendment, I would have said, “I have no problem with that. I am delighted to support it because it’s saying the things that the people of Northern Ireland want to hear”. Then, I paused. I am still pausing because I have come to the debate in what I call a listening mood. I am listening not just for the constant, ongoing repeat of Her Majesty’s Government giving us assurances. That will not change. It is copper-fastened. It is not that assurance I am looking for from Her Majesty’s Government, but the assurance that says, “We understand that some of the institutions and achievements of your peace process are worth protecting, supporting, keeping in place and allowing to develop”. I want to hear that from the Minister. I do not want to hear the usual repeated reassurance, which, because it is repeated so often, loses a lot of its impact. I look to Her Majesty’s Government to say not just to this House but to the people in Northern Ireland that there are certain things we will stand over.

I turn to the words of the amendment. I ask myself: what is wrong with it? Why cannot I, with my experience over the years, say that this is marvellous, I want to support it and see it through and backed up? It is simply this. Just the other day, the chief negotiator of the European Union visited Ireland. I think he is still there. In the course of a press conference he said that the EU will not allow the conversations to go on until there is sufficient movement by the United Kingdom on the question of the border. I once tried to teach jurisprudence to those who were prepared to listen. As at least one of your Lordships will remember very well, I tried to get through to the students that the secret of success was often to look at the meaning of words. In any negotiation there has to be compromise and give and take. Did the chief negotiator mean that there will be a lot of give and take once we move on the border, or was he saying, “We will move if you move”? Was he going even deeper? Was he warning us that, “Unless certain requirements in the control and operation of our border are met according to our terms, we will not continue to help you to get Brexit”? This might be unimaginable to those who see the road to Brexit as paved with gold, but I suggest that there is a lot more to it.

I say to the Minister, who has impressed us all with the way he has handled the sensitivities of post-Good Friday Northern Ireland: reassure me. Tell me that I am worried unduly that there might be a gap in the words of the amendment from another person I greatly respect. What can he say to me, who has come through so much of the past with and among the people of Northern Ireland, as Primate not just of the Church in Northern Ireland but with responsibility for the whole of the island? I can honestly say that I know a little of what I am talking about.

I have one final point to add to the Minister’s growing vocabulary of life in Northern Ireland. There is a wonderful town, the town of my birth, called Lurgan. Out of that town have emanated a great many wise sayings. The one in my mind at the moment is: call a spade a spade. When you talk, call a spade what it is—a spade; when you talk, tell the truth, because you believe it; and when you pontificate, make sure that you do so with sincerity. So, Minister, I, for one, am listening.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I must advise the Committee that if this amendment were agreed to, I would be unable to call Amendments 44 or 45 for reasons of pre-emption.

[Lord Carlile of Berriew (CB)]

My Lords, for those of us who have real enjoyment in the law, a nice bit of law at three minutes past midnight is rather like a comforting, calm, creamy cup of cocoa, but I recognise that not everybody is of the same view. With that in mind, I propose to elide in the remarks I am going to make comments on Amendment 45, which appears in my name and that of the noble Lord, Lord Lucas, and on Amendments 48 and 50, which appear with the same names. That should save time in a few minutes because I understand that we intend to complete that group as well.

These amendments are designed to retain the so-called Francovich principle. I congratulate the noble Lord who has just spoken on summarising it very well. I will add a little bit of flesh on it because I wish to try to tease out of the Minister a welcome response to those of us who seek to preserve at least part of the Francovich principle, although I would happily pass to him the burden of perfected drafting.

In the Gina Miller litigation, in which the noble and learned Lord and my noble friend Lord Pannick played starring parts, the Government in their submissions place considerable weight on their intention to enact what was then called a “great repeal Bill”. As the Supreme Court understood it, that Bill would—and this is a quotation from the majority judgment at paragraph 34,

“repeal the 1972 Act and, wherever practical … convert existing EU law into domestic law at least for a transitional period”.

Surprisingly, in relation to the Francovich principle, there has been no conversion and no transition. I ask the Minister to explain whether that really is the position that the Government wish to maintain.

The Francovich principle is a principle of existing EU law which requires damages to be available where three conditions are met: first, that the rule infringed was intended to confer rights on individuals—I am sure that we would all applaud that; secondly, that the breach was sufficiently serious to give rise to a legal action, which I am sure we would also applaud; and, thirdly, that there was a direct causal link between the breach of the obligation resting on the defendant and the damage sustained by the injured party, and I am sure that we would all applaud that, too. Perhaps the Minister would explain why he wants to get rid of that principle.

To provide a little more explanation for the fascinated non-lawyers here, who may just about be in a majority—

[Lord Taylor of Holbeach (Con)]

Hear, hear!

[Lord Carlile of Berriew]

I always listen with great respect to the Government Chief Whip, especially when he sympathetically allows us to debate these issues after midnight.

In Francovich, workers who suffered damage when their employer became insolvent were entitled to compensation under an EU directive which required member states to secure their protection. Since Italy had failed to implement the directive, the individual workers brought a claim before their national courts for compensation from the state for the damage they had suffered due to this failure, and I think that we would all applaud that, too.

State liability is enforced not through the European courts but through national courts, thus the ECJ stipulated that national procedures should determine how state liability is enforced. The procedures for claiming damages from the state before national courts must comply with the principles of equivalence—that is, with the procedures available for comparable claims for damages—and effectiveness, to secure that EU law as well as national law is respected. As long as it respects these two principles, the member state can prescribe its own procedures for claims as regards, for example, proof and time limits —so it is hardly imposing wicked European ideas on the national courts, since they are left to enforce the principles concerned.

The Francovich principle has led to some significant legal actions; perhaps the best known in the UK is the Factortame litigation, which contained five cases concerning fishing rights.

What is the problem with the Bill? It is confusing. I quote from the summarised views of commentators more expert than me on this subject. It is said that Clause 6(1) removes the right to rely on EU law and obtain a reference to the ECJ after the date of exit. Paragraphs 3 and 4 of Schedule 1 plainly remove the ability to rely on EU law or utilise the Francovich principle after the date of exit. Or do they? I ask that because paragraph 27(3) of Schedule 8, which all noble Lords will have been reading carefully in preparation for this short debate, makes it clear that cases begun prior to the exit date are not subject to the restriction that I have described and therefore can continue to rely on Francovich.

As was pointed out by Dame Cheryl Gillan in another place on 14 November last, the Bill is contradictory, in that it both allows continued reliance on Francovich in cases commenced before the date of exit but also removes that right. That appears to mean that a litigant in a case started before the date of exit, and who has a legitimate expectation that the law will not change retrospectively and that he or she will be able to rely on Francovich, will lose that expectation. If I am wrong in that, I am not the only one and I would like a correction, please. All litigants have a legitimate expectation to have their cases heard under the rules applicable not at an arbitrary time, such as the date of exit, but at the time of the breach of the law concerned. This includes EU law at that time, if it was applicable, and on the face of it, the right of a reference to the ECJ if they are dissatisfied. The purpose of the two groups of amendments is to achieve something much simpler, clearer and more just than the conclusion if the complaints I have described are correct.

I respectfully suggest that if a relevant cause of action accrues before the date of exit, the claimant should be able to pursue that cause of action. That would be their normal litigation right, and exit should not retrospectively remove that normal litigation right. As the Bill stands, because of ambiguity there is a risk that some or all Francovich claims, unless they have already been completed, will be extinguished. Surely, that would be an incorrect and unintended consequence. Plainly—and I will deal with this in a moment—there are some concerns about the potential role of the ECJ.

[Lord Faulks]

One of the points I was going to make concerned the continued role of the ECJ, but while I am on my feet, I entirely understand the noble Lord’s points about transitional provisions, but will he clarify to the House whether his support would go as far as the noble Lord, Lord Davies, in having a continuing Francovich?

[Lord Carlile of Berriew]

No, I would not go so far as the latter part of the speech of the noble Lord, Lord Davies. I recognise that if we leave the European Union, as we are doing, we have to have the transitional arrangements that were promised and that were referred to by the learned judges in the Supreme Court, on the basis of submissions that may well have been made by the noble Lord himself.

What I suggest to deal with the ECJ problem is one of two alternatives. One is to allow the ECJ jurisdiction to continue for the very small number of cases likely to arise. I recognise, of course, that that will attract political problems that might better be overcome by a more pragmatic solution. The pragmatic solution is to recognise and clarify that the United Kingdom courts, in dealing with such cases, should apply normal, comparative law principles; the sort of thing that we lawyers are accustomed to when we cite, for example, Australian or Canadian cases before the senior courts. This would mean that the courts of the United Kingdom, in dealing with such cases, should have due regard to ECJ decisions on similar and analogous matters. This would fall, as I say, within the ordinary principles of comparative law, whereby the United Kingdom courts give due weight to useful and relevant decisions in other jurisdictions. Thus we would have at least analogous law applied to the residual Francovich cases. We would have a right to make a claim on the basis of the date when the claim accrued, even if it is not yet quantified and not yet pursued, and the unintended consequences of retrospectivity would be avoided. In my view this would accord with sound legal principle.

I urge the Minister, even at this late hour, to say that he will return to the House with suitable and welcome government amendments for the clarification and preservation of what are proper bases for action.

--- Later in debate ---

[Lord Keen of Elie]

Perhaps I can continue just for a moment. I would begin by looking at the Bill against that background. Paragraph 4 of Schedule 1 is perfectly clear in saying the right to Francovich damages is removed, because of course it is related to a breach of European Union law, and it would not be appropriate to continue—in accordance with Amendment 43—after we have left the European Union. The Bill is quite clear in saying that there is,

“no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.

To that extent, it does deal with the issue raised in the context of Section 16 of the Interpretation Act 1978.

[Lord Carlile of Berriew]

I take it from what the noble and learned Lord is saying that he accepts that there are existing rights to recover damages available in the British courts which the Government wish to remove. That is a breach of promise, is it not?

[Lord Keen of Elie]

I wonder whether the noble Lord could exercise a small degree of patience while I just complete what I have to say on this topic. But we can take as long as it takes. As I was saying, in terms of paragraph 4 of Schedule 1, the right in domestic law to damages in accordance with the rule in Francovich is removed as at exit date. There is of course a proviso in paragraph 27 of Schedule 8 in respect of claims for Francovich damages which have already been raised prior to exit date—the point that the noble and learned Lord, Lord Goldsmith, made. The potential lacuna is this: there may be accrued rights as at exit date where no claim has been made. We recognise that and it was noted in the other place. We are open to addressing that issue in order to ensure that those accrued rights are not removed by the application of paragraph 4 of Schedule 1. That is something that we are prepared to look at, as I have indicated, because we are aware of the criticism that has been made about the potential removal of rights that have already accrued as at the exit date.

--- Later in debate ---

Moved by

[Lord Carlile of Berriew]

48: Clause 6, page 3, line 32, after “Court” insert “except in relation to anything that happened before that day”

[Lord Carlile of Berriew]

I am grateful to the noble and learned Lord for what he said earlier. It was well worth waiting up for and rather more stimulating than the cup of cocoa that I referred to earlier. Having said that, I can see no point in prolonging the debate on this amendment. If it is appropriate, therefore, I seek leave to withdraw it.

[The Deputy Chairman of Committees]

The noble Lord must move the amendment before he can withdraw it.

[Lord Carlile of Berriew]

I beg to move. Can I withdraw it now?

[The Deputy Chairman of Committees]

It is the property of the Committee until the noble Lord obtains its permission to do so.

European Union (Withdrawal) Bill

Lord Carlile of Berriew Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Farmer]

I thank the noble Baroness for her intervention. Perhaps I can speak to her afterwards concerning countries outside the EU. It is worth mentioning that Professor Beaumont who I mentioned earlier—a leading expert on both the EU and The Hague—said in his opinion that The Hague alternatives are perfectly adequate and satisfactory on our leaving the EU. Apparently, the House of Lords committee does not seem to have heard this evidence.

I am sure noble Lords will be pleased to hear that I am coming to the end of my remarks. This amendment should be rejected because it concentrates on the UK remaining Eurocentric, not global, which is an important point if we are leaving the EU. Academics and lawyers who would have spoken favourably about the Hague laws were not consulted by the House of Lords Justice Sub-Committee, yet practitioners and others have described to me the incredible benefits to children and families from the UK being part of these worldwide international laws.

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Farmer, is rightly respected for his expertise on a number of subjects—this was not one of them. Indeed, it was palpable that the atmosphere in the Chamber was curdling as he spoke. I remind the noble Lord and, indeed, the Committee, and particularly the Minister, who I suspect did not enjoy the speech we have just heard, about the danger of double standards on this subject. I remind the Committee in particular of Section 1 of the Children Act 1989, and of the standard that that Act imposes on courts. By “courts” I refer to every court dealing with children’s issues, from the Amlwch magistrates’ court, if the noble Lord, Lord Wigley, will forgive that reference or enjoy the name check, to the Supreme Court and, indeed, to the President of the Family Division, a role which my noble and learned friend Lady Butler-Sloss filled with such great distinction. It is worth reminding your Lordships that the “paramount consideration”—those are the statutory words—when a court considers the upbringing of a child or anything to do with the child is that child’s welfare. Section 1 of the Children Act 1989 does not merely deal with physical aspects of the child’s life but includes, for example, in Section 1(3)(a),

“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

Those are the standards that this Parliament places on our courts.

There is a danger that, if the Government do not sort out the problems so ably articulated by those who have spoken to these various amendments, we will have a situation of double standards. The courts will be obliged to apply those standards but our Government will abandon them, possibly merely to avoid a few cases coming before the Court of Justice of the European Union. That is completely unconscionable. I am not saying that the only solution is to fall under the jurisdiction of the Court of Justice of the European Union; there may be alternatives, such as a treaty with the European Union that provides for similar processes, albeit through our own courts, and reciprocal arrangements with other courts. The Court of Justice of the European Union is not a shibboleth—one way or the other. It is just the current way of solving a series of problems, which nobody is able to improve on at the moment.

It would be completely unacceptable to hear from the Minister who responds to this debate words such as, “We hope to negotiate”; “We are considering negotiating”; or “We expect that we will achieve”. That will not do, because it does not put the welfare of children first. So when the Minister comes to reply, I hope that we will hear, specifically, how many meetings have taken place in an attempt to start to negotiate a resolution of issues affecting the welfare of children who may be abducted in the most appalling circumstances; when the next series of meetings is to take place on that subject; at what level it is being done; and to what extent the leaders of the family Bar and the family solicitors are being involved in the process of consultation and negotiation. Otherwise, we will have no option but to adopt something like these amendments on Report.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I very much welcome the amendment in the name of my noble friend Lady Sherlock, and the important questions that she posed to the Minister at the start of the debate. The debate has shown how critically important it will be to get the answers to these questions right, not just in the coming months but in the coming years and perhaps decades. The noble and learned Baroness, Lady Butler-Sloss, was forensic in her description, which came from very real experience, of the benefits of the current system and of what might be lost if we make the wrong decisions in passing the Bill.

I will not go back over all the points that have already been made; in the current circumstances I will be deliberately brief. I will raise two points in particular. First, within the United Kingdom we have different jurisdictions concerning family law and some of the other legal rights that have been mentioned in the debate so far. I would welcome some reassurance from the Minister in his response that appropriate discussions are taking place with the Scottish Government and others to ensure that whatever we enact here in the UK Parliament is appropriate for the whole of the United Kingdom, and not just for the legal system in England or England and Wales.

Secondly, on a point of principle, there is a reason why this subject matters so much. We can have ideological debates about our future economic partnership with the European Union, and we can have ideological or political debates about the financial position before and after exiting the European Union—but children and family law are at the very core of the things that matter to us most: the relationships between parents and children; the relationships between children and other children who might be estranged from their brothers and sisters; the relationships between adopted children and their natural parents, whom they may wish to contract later in life; and the relationship between estranged couples.

That is why this debate is different from others, and why in this instance I urge the Government and everybody on all sides who supports or sympathises with Brexit to look for solutions to these issues that deal with the personal, not the political. I urge them to ensure that, whatever arrangements are finally agreed, those personal rights will give families an opportunity to continue contact and to seek appropriate rights and redress, and to be able to do so in the easiest and least expensive way possible.

Assisted Dying

Lord Carlile of Berriew Excerpts

Monday 6th March 2017 Lords Chamber

[Lord Carlile of Berriew (Non-Afl)]

My Lords, in my view, even official Oregon health division data show how dangerous this law is.

First, non-terminally ill disabled individuals are receiving lethal prescriptions contrary to the law. That is the evidence.

Secondly, in any given case, the certifiers of non-coercion and capability need not even know the person being killed. Furthermore, one witness may even be an heir with a financial interest in the death.

Thirdly, there is no reliable way of checking whether the death is a suicide, and therefore lawful, or administered by a third party and therefore unlawful.

Full euthanasia is being introduced by the back door in some cases in Oregon. In all, it is a dangerously unreliable law which contains unsatisfactory safeguards. My answer to the noble Baroness’s second question is a resounding no.

Rehabilitation of Offenders (Amendment) Bill [HL]

Lord Carlile of Berriew Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Carlile of Berriew (Non-Afl)]

My Lords, I start by saying how strongly I support the Bill proposed by the noble Lord, Lord Ramsbotham, who has built up an enormous wealth of knowledge about the penal system since he first became involved in it as Chief Inspector of Prisons, and we listen to him with great respect.

Your Lordships will not be surprised to hear me say, after the speech that we have just heard, that it is a great pleasure to follow my noble friend Lord McNally, albeit from this distance, rather than sitting next to him these days. Both from the Government Front Bench during the coalition and in his very distinguished period as chair of the Youth Justice Board, he has made an immense contribution. The Youth Justice Board has done a remarkable job in recent years, particularly in helping to reduce the number of young people held in custody.

If I have a slightly adverse comment about the Bill it is that, for my taste, it goes nothing like far enough. I do not believe that there is any really convincing evidence that using criminal records to prevent people obtaining perfectly ordinary jobs after a conviction that comes somewhere in the middle of the criminal calendar does anything other than send them back to prison. My view is that we should be very radical about these matters. There is, of course, cross-party support for being very radical about these matters, and I respectfully remind the noble and learned Lord who will reply to this debate of the contribution made by Michael Gove on these matters. It may be dangerous to cite Michael Gove these days as an argument ad majorem on almost any issue, but it has to be said in a debate like this that Michael Gove showed remarkable commitment to reforming the youth justice system. I believe that Michael Gove and Charlie Taylor, who has already been mentioned, and who produced his excellent report, were committed at the very least to the kinds of proposals that we are hearing now. I hope that the new Lord Chancellor will, within a short time, see that she, too, should support this agenda.

I want to say a few words about youth justice. As has already been mentioned, I had the privilege of chairing an unofficial, all-party parliamentarians group that reported on the youth courts system in June 2014. The group had as one of its members a then Back-Bencher who is now the Solicitor-General, Robert Buckland. As a committed Conservative of long standing, he was as enthusiastic as anybody about the changes that we were suggesting. “Treating children as children” should be a mantra that we keep repeating; it means a great deal more than some similar mantras that we have been hearing in recent times in the political agenda.

I recall in particular one instance, when I was a Member of the other place between 1983 and 1997, a woman who was a teacher came to see me one day at a constituency surgery. She was having a successful career as a teacher, and it was really time for her to move on and look at becoming a head of department in another school. She had a conviction for possession of cannabis while at university for which she had been fined £25. I should say that I do not, but I would not mind betting that quite a few Members of your Lordships’ House of a certain age were fined £20 or £30 for possession of cannabis. I see a few nods around the House, but I shall not name the nodders. She was prevented from obtaining that new job because, when the choice came between her and another person of equal merit, it was that conviction that prevented her obtaining her promotion—she told me so because she had been told so. It seems to me ludicrous that that should still obtain today. She was a person who was not going to get into trouble again; the fact that she did not obtain the job as head of department meant that she would carry on working in her present job—but there are people who are prevented from obtaining employment who, because of a criminal record obtained when they were very young, do not obtain a new job and go on to commit crime and walk round and round and round in that terrible revolving door that is the entrance to a prison.

As we have, alarmingly, been hearing this week, we see in prisons all the worst aspects of a criminal justice system that is built on punishment. Of course there are people who should be locked up, but when I was a young barrister, nearly half a century ago, I was told never to use the word “punishment” in a court room. Now it is used all the time. We are losing integrity by that approach to the criminal justice system. The Bill makes proportionate provisions that would make a significant, if not complete, contribution to people whose lives have started badly but whose potential can be unlocked.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Carlile of Berriew Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Carlile of Berriew (Non-Afl)]

My Lords, I have occasionally heard it said that Private Members’ Bills in your Lordships’ House are an opportunity for self-indulgence. If anyone still believes that, they should look at today’s business, in which we have four pieces of legislation, each one of which has the capacity to make an enormous and beneficial difference to people’s lives. We are very privileged to be here on a day such as this—and I feel particularly privileged to be able to stand up in your Lordships' House and support my noble friend’s Bill. She has been a doughty fighter on these issues for many years. I shall freely confess that she persuaded me of the merits of this legislation some years ago and I hope that the House will give full support to her today.

The relationship between religions and the law comes in many shapes and colours on a long scale. At one end of the scale—it was a great privilege to sit next to the noble and right reverend Lord, Lord Carey, when he made his speech—we have the established Church, whose compliance with the law is evidenced daily by its presence in this House. Unfortunately, at the other end of the scale, we have cults that impose rigid and often eccentric discipline on their disciples. I certainly do not accuse Islam of that, but it is part of the picture.

The law must be able to intervene when a point on the scale is reached that undermines accepted legal rights—and that is what this debate is about. I do not want to attack any religion. It is wrong to do so; people are entitled to their beliefs. As a lawyer, I certainly do not want to attack the value of arbitration and alternative dispute resolution. In her wonderful speech, the noble Baroness, Lady Donaghy, gave ample justification for that process, whatever one calls it. If a religious organisation provides alternative dispute resolution and does so fully within the law, we should all welcome it as a very useful process.

If that form of mediation or alternative dispute resolution adds a zone of comfort because all the parties happen to adhere to shared beliefs and views, so much the better. It is no different in degree from them all being members of a good trade union. They share a vision which, one would hope, helps them to agree when they have differed. However, the entry into something that is called a marriage but which is not seen as a marriage by the law undermines rights in a very dangerous way. It removes the legitimate expectations that all the rest of us who have entered into a marriage, or a comparable relationship, enjoy. The use of the term “legitimate expectation” is important in this context because it is recognised by the law that enables people to take legal action against those who have abused their use of administrative action. We call this by the shorthand, “judicial review”.

The consent to a status of, for example, a wife has validity only if there is genuine consent to the consequences of that status. My noble friend’s Bill enables people to acquire those consequences by law, rather than being deprived of them arbitrarily. Where bodies fail to inform an individual of their legal rights, they are failing to fulfil their duty of care to their members. A simple analogy would be the misdescription of goods under trades descriptions legislation. If we buy Chanel perfume and it turns out to be a fake, we are entitled to have our rights enforced. If we marry and it turns out to be a fake, we are surely entitled to the rights of a married person. So where such bodies act contrary to the law, it is a matter for real concern. Where there can be an effect on innocent third parties—for example, children—it is a matter for acute anxiety. My noble friend’s Bill addresses those issues and I applaud it.

--- Later in debate ---

[Lord Carlile of Berriew]

The noble and learned Lord said that a new criminal offence is unnecessary. Does he not agree that the criminal offence of holding oneself out as a medical practitioner has been extraordinarily effective? Does he not think that there is an extremely strong case not for doing nothing but for providing a similar sort of offence for those who hold themselves out to be a court or tribunal?

[Lord Keen of Elie]

There are, of course, provisions already in respect of that. We do not propose to do nothing, as I seek and have sought to explain.

As I said, our reservations about the Bill remain. It would be unfortunate for the Government to rush into any legislative change that did not, in the end, turn around the experience of the women whom the noble Baroness seeks to champion.

--- Later in debate ---

[Lord Keen of Elie]

The noble Lord will appreciate that, even at the Dispatch Box, I cannot give guarantees of government legislation.

[Lord Carlile of Berriew]

But you are the Government.

[Lord Keen of Elie]

That is beyond my pay grade. However, I challenge the suggestion that I have sought to shoot down the various proposals made by the noble Baroness, Lady Cox. I acknowledge the importance of the issue that she has brought before this House. I acknowledge the importance of us being able to address these issues openly and effectively. I acknowledge the importance of considering whether all persons within the United Kingdom—and they are not required to be British citizens for this purpose—have the protections of the rule of law in the face of coercion or threat, even if it is supposedly religious-based. Therefore, I do not accept that I have sought to shoot down the proposals put forward by the noble Baroness, Lady Cox.

There are aspects of the Bill which we would say are legislatively unnecessary because of existing legislation. There are aspects of the Bill which we would consider need to be thought through with greater care. There are issues here that should be considered in light of the sharia review, which is coming out this year, and in light of the report from Dame Louise Casey, which we received in December, just one month ago—and we intend to do that. We do not intend to head in the direction of any long grass in that context.

Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Monday 5th September 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I absolutely understand the motivation behind the amendment, but I wonder whether the Minister might consider another objection. He referred to the risk of the person who was notified changing his practices in the knowledge that what he was doing was being observed by one or other of these various methods. The problem may be not the individual himself but the people with whom he is in contact. One does not know how wide the web is of the group to which he belongs, and it would be so easy for that message to be passed around to people to warn them that there is a particular mechanism in play which is tapping into what he does and that those who operate in the same way as he does will be subjected to the same kind of scrutiny. I rather suggest that the problem is more wide-ranging than the Minister was telling us in his very careful reply to the amendment.

[Lord Carlile of Berriew (LD)]

My Lords, with great respect to my noble friends Lord Paddick and Lord Beith, I am with the Minister and the noble and learned Lord, Lord Hope, on this one. What my noble friends may have overlooked is the strength, distinction and effectiveness of the Investigatory Powers Commissioner. If there was any evidence to indicate that the commissioner, whether the present one or a future one, was likely to behave in a malign way and not reveal where improper action had taken place, then my noble friends’ concerns might have some validity. As has been said, though, the Bill is a world leader, not least in the protections that it contains. I commend to the House the provisions that have been placed in the Bill without these unnecessary amendments.

[Earl Howe]

My Lords, I shall briefly respond to the points that have been made. I am grateful to the noble Lord, Lord Beith, for amplifying the case that his noble friend made in introducing the amendment. In the end, we come back to the point that the noble Lord, Lord Carlile, has just articulated. We are talking here about the proper, legitimate use of the powers that the Bill contains, with robust oversight and mechanisms for redress built in, and the Investigatory Powers Commissioner is indeed an important safeguard in that context.

We are absolutely on board with the proposition that where an innocent person has been completely wrongly subject to the use of the investigatory powers—that is, where a serious error has occurred—there is no argument that that person should be informed. However, I submit that one cannot talk in the abstract about someone who has been “wrongly investigated”, which I think was the phrase used by the noble Lord, Lord Beith. You can be wrongly investigated if you are completely innocent, but you can also be wrongly investigated if there is perhaps not enough to pin on you as the culprit in a particular case but you might nevertheless, subject to further evidence, be implicated in a serious crime or a threat to national security. So we have to be clear about our terms in this context.

I come back to the fact that there are issues of principle and practice here that make this particular amendment unworkable. I also take on board the very good point made by the noble and learned Lord, Lord Hope, that it is not just an individual who could react to the news that they had been investigated in a way that would frustrate law enforcement agencies or intelligence services but a whole group of people. That in turn could affect national security, or indeed the conduct of criminals, much more widely.