Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Davies of Stamford Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Lord Davies of Stamford (Lab)]

My Lords, the noble and learned Lord, Lord Judge, has made a very strong case for simplification, and I agree with it. I had two major reservations when I heard about the Bill. One was about the clean sweep, because I thought that it would introduce an element of retrospectivity. The Minister has assured the Committee that there will be adequate protections against that danger and that no individual will be disadvantaged by the clean sweep—in other words, by being judged on the basis of the sentencing rules that apply at the time of the judgment rather than those that applied at the time of the original offence. If I am satisfied by the protections when I see them in black and white, I will not pursue that objection to the Bill.

My second reservation was that I understood that the Bill would apparently provide for new regulations to come forward through the route of other secondary legislation, such as statutory instruments. That is pretty dangerous in the context of changing the principles of the law. We should see the Government’s cards before we embark on the Bill; I think it quite reasonable to ask about their intentions in advance. I have some reservations about using statutory instruments to add to the Bill’s provisions; I cannot see why it is necessary, from a pragmatic point of view.

It has been said that the Law Commission does not get very much chance to modernise and bring our laws up to date because we do not give its legislative proposals enough time in this House and perhaps in the Commons as well. There may be something in that, but keeping the law under review is a fundamental responsibility of Parliament. If the executive branch does not allow us time to do that, it is right that Parliament should make its disappointment and concern known. The House of Commons succeeded recently in seizing control, rather spectacularly, of its own agenda in the Brexit context; perhaps we should consider a similarly dramatic measure if it proves necessary. We certainly ought to make it clear to the Executive that the low priority given up to now to modernising the law should not go on.

In a pure common law situation, the judge is supreme in sentencing. There is a lot to be said for that pristine model. After all, the judge has seen and heard the accused, heard the evidence from all parties and been in the position to take into account testimonials that may favour the accused. The judge alone has all the facts at their disposal, which is attractive in many ways. I am probably not the only person in the room to feel a certain intellectual nostalgia for that model, but as was predicted 100 years ago by Max Weber, we live in an age of bureaucracy and standardisation. The public insist on uniform standards in healthcare and education throughout the country; one understands why that is. There is an understandable desire to make sure that we have uniform standards in the principles of sentencing throughout the country as well, which is the basis of the Bill, and I accept that. That model is certainly a great deal better than the third model: the American model, under which demagogic politicians stand for office, promising to introduce minimum sentences for all kinds of offences—building considerable emotional campaigns in favour of doing so—so that the law is completely blocked by endless, political minimum sentences. That is one reason why the American prison population is so alarmingly high, I think, so I do not want to go down that route. Of the three particular models, the one to go for is the one in which judges have guidance and some constraints on sentencing, which is the present situation.

There is a great deal wrong with the law at present. Since the Law Commission may read the debate in Hansard for once, I want to take this opportunity to say a few words about where I think some of the real shortcomings are. One of them I have to mention is divorce law, because sitting next to me is my friend the noble Baroness, Lady Deech, who has attempted to improve it. Divorce law is in the most appalling mess. Jurisprudence has moved a very long way indeed from the Matrimonial Causes Act, which dates from the 1960s, in different, contradictory directions. How any lawyer can give coherent advice to a client about what is likely to happen in a divorce settlement I really do not know. This is the most unfortunate situation. Unfortunately, the noble Baroness’s divorce reform Bill failed to get through, but I hope she will be encouraged to try again, because it seems a crying anomaly in the legal system. I hope the Law Commission is listening, because it should read the Matrimonial Causes Act, and then proceed to read the major judgments that have been made and the jurisprudence that has appeared over the past 50 years. It will see what an enormous, king-sized problem there is, which no one is presently doing anything about at all, which is very worrying.

Another area that is particularly unsatisfactory is the law on assisted dying. The DPP took it into his head—very rightly, for noble and humane reasons that I totally support—to say that he would not prosecute, under certain circumstances, offences under the present law for assisting suicide. That was the right moral reaction, but it was completely the wrong legal procedure. It is strikingly scandalous that the law should be changed by a decision of the DPP, who is not there to change the law. The law should be changed by either jurisprudence or Parliament if there is a legal principle at stake, which there obviously manifestly is. Parliament has not been doing its job by allowing these anomalies to arise. I was particularly shocked by a statement by no less than Lord Sumption the other day, who said on assisted dying legislation, which has failed in the Commons, that the position ought to remain that the present law should be retained but the law should be broken from time to time. I thought that a deeply scandalous statement to be made by any citizen, let alone a member of the Supreme Court. After all, the law that exists should be enforced equally—that is the point of having it—across the country. The law is, in fact, unjust. It must be changed and got rid of very quickly. Either a law is necessary and just—those are the two criteria—in which case it should remain, or it is unnecessary or unjust, in which case it should go. We should take action on these matters very quickly, not waiting for decades as is happening.

My final point, which I again hope the Law Commission will read in Hansard, because it is urgent that we take this opportunity to do something about it, is on suspended sentences. If we sentence someone to prison and then suspend the sentence, there is no punishment at all. There was a very nasty case just a couple of days ago of animal cruelty. We have provided for custodial sentences in certain egregious cases of animal cruelty. This was certainly a particularly egregious case and clearly one where there was premeditation and deliberate acts of cruelty on the part of the perpetrator. He was sentenced to prison, but the sentence was suspended. In other words, he did not get any punishment whatsoever. I think that he had to pay £100 or £200 in court fees or something like that. This is a complete mockery. I am very worried that judges are being influenced perhaps by the Treasury, which is worried about the size of the prison population, into suspending sentences that should not be suspended. As a result of that, injustices are being created and a considerable degree of scepticism will be produced in the country as a whole about the robustness of our criminal law if that sort of sentencing carries on. I can see very few examples of justified suspension of a prison sentence. If a prison sentence is deserved, it should be served; if it is not, there should not be a prison sentence, and some other form of punishment should be used.

I draw the Law Commission’s attention to these points as well, on which urgent reform is necessary and, if the Law Commission does not take action, we should take action from the Back Benches of this House. We should make a lot of fuss about it and bring it to the attention, so far as we can, of the general public and make sure that these matters cannot be simply buried or brushed under the carpet, as they have been for far too long.

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

Lord Davies of Stamford Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I have had the opportunity to study the earlier and most recent legal opinions of the Attorney-General. I agree with him that as a matter of law there is a risk. But I was a mathematician before I became a lawyer. One has to find out the size of the risk. Every one of us who crossed the street today to come here had to take a risk, did we not? I came yesterday by aeroplane, which also has a risk. The question is: what is the risk? A good deal of the discussion that has just taken place is about what happens in the event of extremes, but the most important way to annihilate the risk is by reaching an agreement that supersedes the protocol altogether. If we want to see how probable an agreement is, we have only to listen to Mr Johnson, who said: “They are keen to sell us their prosecco”. The European Union is as keen to have a free trade agreement with us as we are to have one with it. In fact, its trade is greater towards us than our trade is to the EU. Therefore, the chances are high, to be judged on the facts as they are now, that there will be an agreement to supersede the protocol. That is what one has to measure. So far as I am concerned, the risk is negligible—a very unlikely event. I would feel sorry if the future of our United Kingdom, in this connection, were determined by an appreciation of a so-called risk that is practically negligible.

[Lord Davies of Stamford (Lab)]

Just to deal with “egregious” first, surely the word derives from the Latin “e grege”—

[Baroness Goldie (Con)]

Order. May the Minister respond?

[Lord Keen of Elie]

I will welcome the noble Lord’s comments. His reference to Latin will no doubt enhance this debate. However, for the moment, I entirely concur with the observations of the noble and learned Lord, Lord Mackay of Clashfern. It would be foolish in the extreme to make an important—indeed, significant—political decision on the basis of a risk that can genuinely be regarded as negligible.

[Lord Davies of Stamford]

My Lords, I apologise for my slip. The word “egregious” derives from the Latin “e grege”—outside the flock; in other words, it means abnormal, out of the ordinary. “Shocking” is the wrong translation.

The elaborate piece of theatre that the Government staged last night in Strasbourg and the opinion of the Attorney-General have been designed to ensure that we do not stay in the customs union. As the Minister himself acknowledged, staying in a customs union would be greatly in the national interest. The Government’s policy in this matter is 180 degrees in the wrong direction. Industry and commerce are crying out for the opportunity to stay in the customs union. If we did find that opportunity, I hope we would grasp it. It is much more likely to come to us not from bad faith on the part of the Commission or the Irish but simply because the whole idea of establishing a frontier that is not a frontier proves to be hocus-pocus, as my noble friend Lord Bassam has shown. No such technology is even under study at present. Anyone who knows anything about venture capital knows that the chance of a blue-sky idea becoming viable and generating money is, at best, one in 20.

Brexit: Negotiations

Lord Davies of Stamford Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Callanan]

This is only within the backstop itself. As I said, we hope that the backstop will not be required and that we will be able to put in place future arrangements that will render the backstop unnecessary. There are some regulatory differences now between Great Britain and Northern Ireland. But it is true that under the backstop, if it comes into operation, Northern Ireland will align with many parts of the single market acquis that are necessary for the creation of a borderless Ireland.

The declaration reached common ground on services and investment, including financial services. It also ensures that we will be leaving the common agricultural policy and the common fisheries policy. The UK will become an independent coastal state once again.

We have been able to agree on key elements which will help keep our people safe. These include effective extradition arrangements, as well as mechanisms for data exchange on passenger name records, DNA, fingerprints and vehicle registration data. We have also agreed a close and flexible partnership on foreign, security and defence policy.

[Lord Davies of Stamford (Lab)]

I am very grateful to the Minister for giving way. What precisely are the arrangements on financial services that have been agreed? I have failed to find any concrete measures in the large amount of paper in front of us.

[Lord Callanan]

I have a copy of the document here. There are three paragraphs on financial services in the outline declaration. The noble Lord will find them on page 2. I could happily read them out but time is short. Obviously, we will be fleshing out the future partnership document this week and we hope to publish more details on that shortly.

[Lord Davies of Stamford]

That document does not contain any specific measures at all.

[Lord Callanan]

It contains measures for protecting financial stability and market integrity, and for the commencement of an equivalence assessment, which is extremely important to many in financial services. But, as I said, this is one of the things that we are fleshing out. This is an outline declaration and the final details are being negotiated as we speak.

--- Later in debate ---

[Lord Davies of Stamford (Lab)]

My Lords, the Brexit negotiating process has been an unmitigated and historic shambles. I am quite sure that, for decades to come, in business schools and schools of international relations around the world it will be taken as a test case of how not to conduct a negotiation.

I fear that the Government have still not learned even at this stage what the problems are that they ought to face up to. During his speech, I asked the Minister about the new financial services regime, which was held out as a result of the agreement. Of course, I knew that no such agreement had been reached, and he just gave me some PR verbiage taken from the document. We, and business, need to know whether we will be able to do corporate lending from London. Will we be able to manage in London the funds of institutions resident in and regulated on the European continent? Will we be allowed to sell retail financial products without an establishment in the country concerned? These are urgent questions of enormous economic importance. A lot of people are now sitting on contingency plans, wondering whether they should implement them. Only when they know the answer to questions such as those will they be able to take a decision.

This is not just about financial services. It is about the whole services sector, which noble Lords will know makes up 80% of the economy. It is simply waiting for answers. Nothing—nothing—is said on the subject in these jejune and hopeless documents. Let us take broadcasting, for example. We are very good at it—probably the best in the European Union. Will the broadcasting directive effectively continue to operate, under which, if any programme is broadcast anywhere in the EU, it can be automatically broadcast anywhere? Will that happen or not? We need to know the answers to these concrete, precise questions.

The Prime Minister has made a lot of mistakes. One fundamental mistake was to argue and campaign for a project that involved impoverishing the country—although not as much as leaving without an agreement would, as was pointed out by the noble Lord, Lord Stern. Nevertheless, whether we lose £50 billion or £200 billion, we will still lose money. The Government are supposed to focus on improving the economy, employment, living standards and so forth. We are headed in a completely perverse direction. After the referendum, the Prime Minister’s mistake was not going for full and permanent membership of the single market and customs union, both of which were entirely negotiable.

At the time, the Prime Minister said that she could not do that because she needed to come up with something that was endorsed by, or had the blessing of, the referendum. She then made a complete nonsense of her argument by coming up in August with this extraordinary Heath Robinson contraption called the Chequers agreement. Of course, that has evolved and been tinkered with since—but by no conceivable stretch of the imagination could it be regarded as something endorsed by or consistent with the referendum. It is something that no one at the time of the referendum could conceivably have thought of. So I am afraid that her credibility, not surprisingly, is almost at the bottom of the thermometer.

I fear that the Prime Minister is now about to make an even worse mistake. There are rumours that she intends to manipulate House of Commons procedure such that the Commons will get a vote, with no amendments or alternatives, on only two possibilities: either her deal or coming out of the Union without any agreement at all. It is what you might call the “dog in a manger” approach, or the “spoiled child” approach: unless she gets what she wants, she will ruin the party for everybody. That is not the sort of thing I would have expected from the Theresa May I knew all those years ago when I sat with her on the Tory Benches in the House of Commons, and indeed in the shadow Cabinet for two or three years. I hope that her better instincts will prevail because, if she went down that road, she would both incur the economic costs of going through with Brexit and cause something even worse: a profound political and constitutional crisis in this country.

Good Friday Agreement: Impact of Brexit

Lord Davies of Stamford Excerpts

Thursday 11th October 2018 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I begin by taking up the contributions that have just been made by my noble friend Lord Adonis and the noble Lord, Lord Bilimoria, which touched on a very important point. There is freedom of movement within the island of Ireland—the common travel area, as we have always called it. You have the right to walk, drive or take a train anywhere on the island and never show any papers or go through any controls at all. It is of course vital that we keep that regime and it would cause a revolution—of which I should probably be a part, by the way—if anyone suggested removing those rights.

However, how can we possibly retain those rights when the Government are determined that the country will leave the European Union and no longer be a part of the freedom of movement provisions of the treaty? In such circumstances, anyone could take an aircraft from Bulgaria, say, to Dublin—they would have an absolute legal right to be admitted into the Irish Republic—and then simply take a bus or walk across the border into Northern Ireland and they would de facto be in the UK. Since I do not think there are going to be any border controls either between Northern Ireland and England, they could then come over to London. How is it possible that, after two and a half years of talking about this issue, we have still not had an answer to this from the Government? I ask the Minister today, if he does nothing else, to give us the answer to that very key question. It is disgraceful that it has never been answered by the Government up to the present time.

I was going to talk about something slightly different, relating of course to the Belfast agreement. I remind the House that, for two or three years after the agreement was concluded, I was shadow Secretary of State for Northern Ireland. I was determined to make what contribution I could to normalisation in those circumstances, in support of the principles of the Belfast agreement. I therefore made a point of meeting people on both sides who had been involved in the violence, which had been terrible. I made a point as well of going to places where no British politician had been for 40 years. Incidentally, I was the first British politician to meet the Loyalist Commission.

I was also the first British politician to go to Crossmaglen for 40 years, not being helicoptered into the sangar and out again but going in a perfectly normal way. I did a walkabout, went into pubs and shops, had a long discussion in the post office and so forth. I was treated with the greatest degree of friendliness. I have to say that that visit was controversial at the time; the Unionist Party—I see that the noble Lord, Lord Trimble, has left the Chamber—was not in favour of my doing it and the chief constable said he would not give me a police escort. I was deeply grateful; that was the last thing I wanted in those circumstances.

I also knew I was not running any risk. By that stage, I understood enough about Ireland, Sinn Féin and the Provisional IRA to know perfectly well that, if the IRA wanted to kill me, they could do so without any difficulty any day they more or less chose. However, if Martin McGuinness said to me, which he did when I told him I wanted to go to Crossmaglen, “You’d be very welcome in Crossmaglen, Quentin”, I knew that I was entirely safe and that no one there would dare to harm a hair on my head. I cannot say that I always feel like that elsewhere. That visit went off very well.

I also spent quite a lot of time, again because of introductions by Martin McGuinness, in west Belfast. I remember many hours of conversations, usually at the Patrick Sarsfield club—I do not suppose any British politician had been there before either, for that matter— talking about things that interested me about Ireland. One subject I raised was how Sinn Féin and the Provisional IRA were persuaded to agree to the Belfast agreement, to agree to peace and, above all—the most difficult thing for them—to agree to give up their arms. I learned what had actually happened.

Martin McGuinness had said—I dare say that Gerry Adams and other members of the Army Council would have said the same thing, but I only heard about what Martin McGuinness had been doing and saying from his people—“Well, okay, we have not got 100%. We have not got a united Ireland, but we have got the best deal we could have negotiated for the last 60 years and, in my judgment, the best deal we can negotiate for the next 20 years. Actually, we have an enormous amount of what we require—probably 80%”, because, as a result of the Belfast agreement, all the obstacles were coming down. The roads that had been blocked up were being reopened, there would be no procedures or difficulties placed in the way of moving around the island of Ireland. There was no greater difficulty driving between Dublin and Belfast than in driving between Limerick and Cork.

“What is more”, Martin McGuinness continued, “all-Irish institutions are being set up, and that is the way forward, and both the United Kingdom and the Republic of Ireland are now part of the European Union”—a situation that could not possibly have been envisaged when the Troubles started in 1969 and 1972, and obviously not in 1919 to 1922, during the violence referred to a moment ago. That changed an awful lot of things, because it meant that the British were equal partners with a constant necessary working relationship with the Irish in the European Union. As time went by, internal frontiers within the European Union became psychologically less important and physically less visible. Things were going in a direction in which it was all right for the Irish nationalist and republican movements to go along with the Belfast agreement entirely consistently with the objectives that they had always had.

Now we see the dangers of the present situation, because the British have said that we are leaving the European Union and all that is going for a burton. It is no longer clear that there will not be checks—I have already raised the question of borders of various kinds. A border is any line in the ground which, when you pass it, can have some legal or financial consequences. The issue is what happens to freedom of movement within the island of Ireland, as I just mentioned, and what happens to the movement of goods. Notoriously, there have been no solutions to that at all.

We are in danger of creating yet another case of a British broken promise, and Anglo-Irish history is full of British broken promises, which we have lived to regret over time, so I hope that the Government are not thinking of making and leaving in the history books yet one more British broken promise.

--- Later in debate ---

[Lord Duncan of Springbank]

I did not say, “which is satisfactory to the Republic of Ireland”. I said that the situation is that, if we are unable to secure an agreement, we would then need to invoke the backstop as it was drafted in the joint report, which was published in December 2017 and is still available. That backstop position is clear: we will not allow one part of the United Kingdom to remain in some union with the rest of the EU 27 while the rest of the UK is not in such alignment. There needs to be a position whereby the UK as a whole experiences no internal divisions, no internal borders, no means which restrict the flow of goods or services across the Irish Sea or across the Irish border.

The key aspect of this, and the core aspect, is to negotiate and deliver a settlement which means that the backstop is just historical, a document which you can read, but which has never been invoked; which is instructive about our engagement with the process, but is not being moved forward because it is simply an historical document.

It is important that we recognise that Northern Ireland will remain a part of the UK, based upon the principles of consent enshrined and framed within the Good Friday agreement. Again, nothing will influence or change the language of that agreement. At that time where there is a movement in the province of Northern Ireland, the Good Friday agreement will support that movement in that particular direction. That was its purpose. That was why the agreement was so subtle and so clever in putting together that particular aspect.

It would be useful for me to spend a moment or two talking directly about the four questions which were raised by the noble Lord, Lord Adonis, because they were, in some ways, instructive. I believe I have answered the first, the question about whether Northern Ireland will be in a customs union while the rest of the UK is outside, even if only on a temporary basis. The answer to that is no.

Regarding suppression of trade, or any of these aspects, the ambition right now is to ensure that that soft border remains until such time as it is replaced by the appropriate relationship between the 27 and the one—between the UK and the remainder of the EU.

Regarding freedom of movement, there has been talk again of the common travel area. As a number of noble Lords have noted, this dates back to 1922. It will not change, and it will allow the freedom of movement of people within the island of Ireland. Now, I see the noble Lord, Lord Davies, looking quizzically at me, because he asked a very different question about that, which was about what then happens if you find an EU national who, by one means or another, finds himself in Ireland with the freedom, then, to cross the border into the north. I may be paraphrasing slightly, but I believe that is the core of it. In truth, there is a risk of that today. That is why the intelligence shared between Belfast and Dublin is so strong.

[Lord Davies of Stamford]

My Lords—

[Lord Duncan of Springbank]

If I may answer the question first, the noble Lord can bob up afterwards. The reality remains that, right now, were someone to come into the EU via Ireland from outside the EU, they too could go to ground by crossing the border if they were so minded to do so. They would remain an illegal migrant at that particular point, and they would be unable to draw upon any of the services or opportunities of employment in the north or in the rest of the UK. I will give way.

[Lord Davies of Stamford]

I thank the Minister for giving way and for addressing my question, but I do not think that he has fully understood it. At the present time, that Bulgarian in my example can come here, either from Ireland or Calais, because we are part of the European Union, with a system of freedom of movement. If we leave the European Union and the area of freedom of movement, so that the citizens of the other 26 countries in the Union will not be able to come here freely as they can at the present time, and if we still have freedom of movement within the island of Ireland, then my question is clearly relevant. If the Bulgarian comes to Ireland, which he can do today quite legally, it will no longer be the case that he can come here quite legally without any formalities at all; however, he is physically able to do so because of the absence of any restrictions—rightly, in my view—either between the border of Northern and south Ireland or between Ireland and Britain.

Privately Financed Prisons

Lord Davies of Stamford Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, is it not the case that you can achieve considerable savings in a prison system if prisons are designed and built from the start with a view to the maximally efficient use of staff, bearing in mind the need to achieve targeted levels of out-of-cell time and community time for inmates? Is it not the case that you do not get those savings unless the same organisation, be it private or public sector, is responsible for managing the prison—at least for the payout period for the necessary financing—as well as for the design and construction? Otherwise, there will be no incentive to build a prison to maximally efficient levels.

[Lord Keen of Elie]

My Lords, I do not accept that there is such a necessary link between the construction of the infrastructure and the operation of the prison. Nevertheless, we are committed to replacing our present prison estate with modern facilities to achieve the very outcome referred to by the noble Lord.

Rape Trials

Lord Davies of Stamford Excerpts

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not aware of any such cases. However, clearly, we have a series of filter mechanisms in our criminal justice system that includes the criminal cases review operation where there has already been a conviction and material comes to light.

[Lord Davies of Stamford (Lab)]

My Lords, the noble and learned Lord has referred several times to the obligations placed on the defence by the 1996 Act. Is he suggesting or is he aware of any evidence which indicates that some of these cases that have collapsed have done so as a result of a failure by the defence to meet its obligations under that Act?

[Lord Keen of Elie]

Recent inquiries indicated that in something like 25% of cases a defence statement was not produced or not produced timeously.

Worboys Case and the Parole Board

Lord Davies of Stamford Excerpts

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

There are no immediate proposals in that regard. As the noble and learned Lord is aware, the LASPO provisions are currently under review.

[Lord Davies of Stamford (Lab)]

My Lords, the head of the Parole Board has resigned and, as usual, the Secretary of State and the Government sail on with apparent impunity. However, the failings revealed by this case—the excessive secrecy, the failure to consult victims, the apparent inadequacy of training and the failure to look at previous offences—were part of the system’s structure for years and years. They should have been known about—if, indeed, they were not—and the Government should have addressed them a long time ago. Has the noble and learned Lord persuaded himself that the Government have no responsibility at all for these shortcomings?

European Union (Withdrawal) Bill

Lord Davies of Stamford Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Baroness Smith of Newnham]

My Lords, I was intervened on and had not finished—in fact, I had barely started. The point is that many people feel that we have talked a lot, absolutely rightly, about the rights of EU citizens who are resident in the United Kingdom, and we have talked a bit about the rights of UK nationals who are resident in other European countries, but there has been very little discussion about those people who are not overtly exercising their rights, as the noble Lord, Lord Wigley, said. When we have considered UK nationals resident elsewhere, we have tended to think about people living—retired, working or studying—in other countries. Here I declare an interest: my day job is as a lecturer in European politics. On an almost daily basis I consider that I am exercising my rights as an EU citizen by being able to get on the Eurostar and go to Brussels without having to think about visas or visa waivers. There are all sorts of ways in which we are able to exercise our rights as citizens on a daily basis.

I suspect that the Minister will say, “This is absolutely not possible”, but will he at least say that the Government are thinking about the rights that British citizens might retain? So far, much of the debate on withdrawal has been about regulations and whether we retain laws, but do we also retain rights, and do the Government wish us to retain rights?

[Lord Davies of Stamford (Lab)]

My Lords, for the first time in these debates, I am, sadly, going to have to disagree with my greatly respected noble friend Lord Adonis. It is quite a serious matter to deprive people of one of their citizenships. I feel that quite strongly because I feel very European. I feel European, British and English, and even partially Welsh because my ancestors, I am proud to say, came from the Principality. I have never seen any contradiction at all in those different identities and loyalties, and I find it very insulting that someone should suggest that there is such a contradiction or that I have to give up one of those affiliations. That is the suggestion, although of course it will not affect my loyalty or my sense of identity or my sense of who I am.

These things are subjective, and the actions of third parties—even of Governments or parliaments—do not affect them. That is also the verdict of history. One thinks of Poland, which ceased to exist as a country between 1795 and 1918. That did not stop the Poles feeling very Polish. In the case of Ireland, the British tried for about 800 years to stamp out any sense of separate Irish identity and nationality but completely failed. At the end of 800 years I think that the Irish were more patriotic and conscious of their nationality than they were at the beginning. Therefore, I do not think that this will change the psychological or subjective notion of who I am and where I stand; nevertheless, it is offensive.

There is a quite separate matter in my mind, which is the loss of important benefits: the right to work, the right to vote and the right to take part in various programmes, such as educational exchange programmes. We have already debated these things in full. These are very important rights and liberties, which we will give up if we leave the Union. However, I do not see why, in addition, we should be told that we have to give up our sense of citizenship.

I recognise that the Brexiters in this Chamber and in the country as a whole see no virtue in the European Union or in having the rights that come with being in the EU, and they certainly see no virtue in European citizenship; indeed, they may wish positively to give it up for reasons of their own—perhaps the exact mirror image of my own position. However, I hope they will agree, as I hope all rational, liberal people will do, about the Pareto principle—that if you can do something in life that improves the happiness of a number of people without damaging the interests or happiness of anybody else, you should do it. On that basis, I hope that the Government will not want to stand in the way of those of us who want to keep our European citizenship. Of course, it is a matter for the European Union to decide whether to continue to give us European citizenship; it is not a matter for the British Government. However, I am asking the British Government not to impose obstacles but to positively help those of us who wish to achieve that purpose, which I think we can do without causing any damage to our fellow citizens who wish to go in a different direction.

Of course I agree totally with what my noble friend Lord Adonis said about leaving the European Union. That is a disaster. I have made it clear in these debates that that has been my view all along. Much the best solution in all these circumstances and to all the problems we have been airing in the last few weeks would be to stay in the European Union. I agree about that. But I do think that in life if there is going to be a complete disaster, if the ship is going to go down, it is better to get a place in a lifeboat than just going to the bottom. It is on that basis that I appeal to colleagues taking both points of view about the European Union to be generous and to try to help those of us who wish to preserve some physical manifestation and demonstration of our European citizenship, to which most of us—on our side, anyway—attach strong, personal importance.

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[Lord Keen of Elie]

I am not going to indulge in an issue regarding maternity at this stage. Let us try to keep focus on the amendment, shall we?

We are all aware of the issue and we are also aware of the agreement that has been entered into to protect the rights of EU citizens and their family members living in the UK and of UK nationals living in the EU until the end of the implementation period, set at 31 December 2020. During the implementation period, individuals will still be fully covered by the EU acquis. UK nationals will be able to continue to move around the EU 27 member states and will have the freedom to move to another member state to live and work, as long as they do so before the end of the implementation period.

That reminds me of the point made by the noble Lord, Lord Kerr, about Article 32 of the withdrawal agreement. The position is this: what was proposed in Article 32 was removed as there was no actual agreement on that point. Therefore, there was no reason to have a legal text covering a point that was not the subject of agreement. The United Kingdom pushed strongly for the inclusion of ongoing movement rights during the first phase of the negotiations, but the European Union was not yet ready to include them. Of course, it remains an issue that we wish to pursue. We have already made that clear.

To come back to the amendment itself, it is simply not feasible for us to set upon a course of negotiation that is doomed to failure. We cannot secure EU citizenship for citizens of the United Kingdom after we leave the EU. That is the short point to be made. Therefore, the amendment would set the Government on a course of negotiation that would effectively prevent the present Bill—

[Lord Davies of Stamford]

My Lords—

[Lord Keen of Elie]

I shall just finish the sentence, so will the noble Lord please sit down? It would effectively prevent the present Bill getting on to the statute book and achieving its intended purpose: to ensure legal certainty at the point at which we leave the European Union.

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[Lord Keen of Elie]

I am perfectly content to look at the opinion.

[Lord Davies of Stamford]

I will take up a point that the noble and learned Lord was making before he took the very sensible and helpful intervention from the noble Lord, Lord Wigley. We all accept—I explicitly accepted it in my remarks—that EU citizenship is not within the Government’s gift. I accept, too, that there is no practical possibility of the Government negotiating it in foreseeable circumstances with the EU. What I am asking for and what I hope the noble and learned Lord can offer on behalf of the Government is that they will place no obstacle in the way and will do anything that appears possible to facilitate and support any move by any of us to try to achieve from the European Union some recognition of the fact that we are European citizens and we will continue to feel that way even after Brexit, if Brexit, unfortunately, takes place.

[Lord Keen of Elie]

The reality is that if Brexit takes place we will not continue to be EU citizens.

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[Lord Kerr of Kinlochard]

My name is to this amendment, but I have little to say because the case for the amendment has been brilliantly put forward by a lawyer, and I am no lawyer. It seems to be a common-sense amendment. If, as I think will be the case, the European Union side in the negotiation continues to insist that, if we want a standstill period in which we act as if we were members of the customs unions and the single market until January 2020, the jurisdiction of the Court of Justice as the umpire of the single market must continue. It seems to me we have to accept that if, as I expect, the European Union insists on taking the position it is now taking. In that case, as explained by the noble and learned, Lord Goldsmith, Clause 6 would have to be struck out. Clause 6 is in flat contradiction to what is going to be agreed on the standstill agreement. Therefore, it seems sensible to avoid having to repeal part of the law that we would have passed for us instead to introduce this small amendment that simply says that Clause 6 does not come into effect until the end of the transition period.

The concept of a standstill transition is extremely unsatisfactory. It is necessary but it is insufficient to deal with the huge problems that British industry and business will face. It is inconceivable that by January 2020 we will have negotiated a full agreement with the European Union covering the full gamut of our future relationship, including trade. That is just not feasible. Even if we had done that—if we had achieved the impossible—we would have a mixed agreement which would require national ratification in all capitals. All the standstill agreement does is give us the position for 21 months that we will accept and operate under laws that we have not written, on which we have had no votes; with no judge in the court but the court having jurisdiction; with no Members in the European Parliament but the European Parliament writing our laws, with the Council; and with no one in the Commission. I find that ignominious and insufficient because all it has done is move the cliff edge out to 1 January 2021. We will not have the long-term, permanent successor relationship defined in treaty form in a ratified treaty at the end of this period.

Moreover, it is my judgment that for legal reasons it will not be possible to extend the period. It seems to me that one cannot use Article 50, which is about withdrawal, to produce an extended period of future relationship. There are other articles in the treaty which define association agreements and relationships with third countries. I do not think the lawyers will allow us to use the withdrawal agreement as a treaty base for an extended period of new relationship. Therefore, although it is absolutely necessary to have a standstill because otherwise the cliff edge is very close, it does not solve the problem of the cliff edge but merely postpones it for a bit. But the amendment moved by the noble and learned Lord, Lord Goldsmith, must surely be right. It does not make sense to have a lengthy Clause 6 explaining a relationship which will not actually be the relationship we follow during the standstill period.

[Lord Davies of Stamford]

My Lords, I am mystified as to why there is any controversy at all on this matter and why the Government have come forward with a Bill that includes Clause 6 in its present form. After all, it is us who have asked for some withdrawal or transitional arrangement, and very necessarily so—I quite agree with the noble Lord, Lord Kerr; the whole matter is extremely unsatisfactory from many points of view.

Although our position will change constitutionally in March next year if we go ahead with Brexit, and we will not have been involved in the legislative process and so forth, the whole purpose of the transitional arrangement as I and I think everybody has understood it—that is the way the European Union has understood it, because after all, it is our request—is that the regime affecting all economic agents, traders and so forth, will be completely unchanged. They will carry on after March next year until January 2021 in exactly the same way. The rules they operate under will be the same. Their contracts will be interpreted in the same way as before. Their obligations to the state and so forth will be interpreted in the same way and therefore they will know exactly where they stand. They will not need to have any new regime introduced during that period. If that is the case, surely the legal regime must not be subject to any change—quite obviously so —because if it is going to continue as it presently is, the judgments of the courts which oversee that must be the same as they otherwise would have been.

Therefore, I am completely mystified as to why the Government have proposed that Clause 6 should come into effect on Brexit rather than at the end of the transitional period. I just hope that we will have a satisfactory and credible explanation from the Government. They might even admit that they have made a slight slip on this occasion and accept the amendment which is now before them.

[Baroness Smith of Newnham]

My Lords, I rise in the absence of my noble and learned friend Lord Wallace of Tankerness, who has also put his name to this amendment. I want to raise a point that he has already raised with the noble and learned Lord, Lord Keen, and a couple of my own.

First, my noble and learned friend asked how EU law will take effect, given that under Clause 1, the European Communities Act 1972 will be repealed. It may be that ensuring Clause 6 has effect only after the transition period gets around that, but there is a real question about the United Kingdom implementing EU law from the day we leave—30 March next year—through to the end of December 2020. During that period, we will be subject to the European Court of Justice but, in principle, will have no representation—that is the point the noble Lord, Lord Kerr, made in passing: we will not have a judge. The noble Baroness the Leader of the House was asked whether the United Kingdom will still have a judge on the Monday. We assume it will not, but is that the case? Have the Government discussed it? In addition, will we have an Advocate-General? My understanding is that the current Advocate-General believes she is in an ad-hominem position.

European Union (Withdrawal) Bill

Lord Davies of Stamford Excerpts

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

My noble friend must accept that this is no passing matter; it is not just a case of supporting animal welfare because it is so popular. I do not think that anyone has ever told me that I am sentimental about this. I take a very clear and hard line on it—but I also happen to be reasonably rational. What the Government are asking us to do is not something that the revising Chamber should dream of doing. We should insist on this being changed.

[Lord Davies of Stamford (Lab)]

My Lords, I congratulate the noble Baroness, Lady Jones, on introducing the amendment very clearly and effectively. I support it strongly. I also commend the speech of the noble Baroness, Lady Bakewell, who spoke straight from the heart. However, there was nothing at all sentimental or false about what she said; it was said straight from experience and was very matter of fact.

I too have the benefit of living in the country—I see it as a benefit, anyway—and I see many animals. I have cattle grazing on my land and I have a dog; I should declare that interest. I have many times been able to verify how intelligent these animals are, how sensitive they are and what an extraordinary relationship they can have with human beings. All of this is orthodox science. It was demonstrated by Pavlov or Konrad Lorenz and has been demonstrated over and over again, so I do not think there is any doubt about it. It has always seemed to me that caring about sentient animals is one of the marks of a civilised society. There is terrible cruelty to animals in this world. The situation is obviously worse in many poorer countries, for reasons one understands. I think that the European Union has probably the highest standards of anywhere in this matter—certainly far higher than the United States. I hope that we can keep things that way if we have to leave the European Union and that we will at least not resile from those standards. That is why I want to comment on what has just been said.

I am not sure that I have ever said this before, but I agree with every word that the noble Lord, Lord Deben, said in his excellent speech. That being the case, I might normally be tempted simply to record my agreement and then sit down. However, I have some slight hope that if I make similar points to those he made—it was my intention to make exactly the points he pre-empted me in making—but from a rather different perspective, and the Government hear a similar message from different parts of the House, they might for once consider whether there might be something in those points—and it would be very desirable indeed if the Government thought again about the matter.

The noble Lord, Lord Deben, made a couple of very important points. I will not follow him on Northern Ireland as we shall have other opportunities to debate that in the course of our proceedings, and I look forward to taking part in those debates. The noble Baroness, Lady Jones, made it very clear that the Government clearly intend that there should be protection for sentient animals in our legislation, but not to the same high standard that applies at present. Over and over again—countless times—we have heard in these debates that the Government’s only intention in bringing forward this Bill is to transpose Union law into British law so that there is no legal vacuum or legal confusion if we leave the European Union. We understand that that is a perfectly reasonable and logical response to the situation and I think that most of us on this side of the House want desperately to take the Government’s words in good faith.

However, over and over again we find that that is not true, that there is a surreptitious agenda and that rights and protections which exist by virtue of our membership of the European Union are not being carried forward and that the Government appear to have no intention of carrying them forward into domestic law after Brexit. The noble Baroness, Lady Jones, made this absolutely plain and cited the Government’s proposed wording to replace the article in the Treaty of Lisbon on animal welfare. It is quite clear that the Government want to weaken that language. Why do they want to do that? I had always thought that there was a consensus among civilised, humane people on the protection of animals which went across this House and the other place and had nothing at all to do with political parties. Is that not the case? Why should the Government therefore decide in this case not to carry forward into British law the existing levels of protection in the Treaty of Lisbon but to deliberately reduce them and dilute them? Why is that? I cannot understand it.

Secondly, on another point made by the noble Lord, Lord Deben, there should be no illusion about this matter as regards international trade. If we are serious about animal welfare, we must impose exactly the same standards that we impose on our own farmers in this matter on any imported animal products, otherwise we will make complete fools of ourselves without any gain to animal welfare at all. All that will happen is that the business will go to farms in other countries which apply appalling standards of animal protection or none at all and who therefore have an economic advantage and can undercut the British farmer with produce that is produced in barbaric fashion. I include in that the way the Americans produce their beef, which is absolutely revolting. They now have zero grazing for over 95% of their beef, which means that you have two animals in an area slightly smaller than the Table in front of me. They never see the air or a blade of grass in their life. That is appalling but it undoubtedly gives the Americans an economic advantage.

[Viscount Ridley (Con)]

The noble Lord is repeating a point he made last week about American agriculture. I let it pass then, but on that occasion he said that if you go to Texas, there are no cattle outdoors, and that you would not see a lot of Texas longhorn outdoors. I go to Texas quite regularly and see an awful lot of cattle being raised outdoors. The noble Lord should be careful not to exaggerate what is happening. I do not know what relevance this has to EU withdrawal, but it is important not to go too far in this respect.

[Lord Davies of Stamford]

I will come to the relevance to EU withdrawal in a moment. I will just say that I feel that I have not lived in vain, because the noble Viscount has listened to what I said and thought about it for several days. I was perhaps speaking figuratively; in this life you can never apply the word “infinity” or “zero” in a completely literal sense. He may have been to the wrong part of Texas, or to parts where there are expensive ranches and the oil billionaires who own them like to have some longhorn on display. Those ranches exist, and I have seen one or two of them. Perhaps the noble Viscount has some friends who invited him there. That is not the heart of the beef economy. If the noble Viscount knows anything about Texas—he obviously does—he will know that Fort Worth used to be the centre of the Texas meat industry. I used to go there very frequently because I had a lot of dealings with Lockheed Martin, which is based there. I went there at different times of the year and I got to know the countryside around Fort Worth and towards Dallas quite well. That would have been cattle country 100 years ago; there would have been cattle on every horizon. I have literally never seen a single live animal in the area around Fort Worth, which was the headquarters of that industry. That is not a part of the United States where wealthy people have ranches with animals on display, which is a very different matter.

The point I was making—I will not say before I was interrupted, because I was pleased to have the intervention from the noble Viscount, particularly if he has been listening to my speeches carefully—was that there is no point in having any kind of regard to animal welfare and persuading ourselves that we are being humane and civilised in doing so if we then let in, in our imports, meat or other agricultural products which derive from inhuman practices. All we are then doing is making sure that the business and the activity moves from this country abroad with not a single iota of gain to animal welfare or happiness, and causing the destruction of the British livestock industry in the process. That makes no sense.

If we are to do this, we have to do it properly. We should make it a matter of moral commitment that when we leave the European Union—if indeed we do—we stick to the high standards which the European Union has set in this matter and certainly do not dilute them, and secondly, that we ensure that we impose those standards if we have left the European Union and are in a position to sign free trade agreements with other countries. I have explained why I think it is unlikely that we will be in that position in practice with the United States, but supposing that we were, we should in that eventuality impose exactly the same standards on anybody who wants to sell us meat or other agricultural products in future.

[Lord Bowness (Con)]

My Lords, noble Lords will be pleased to know that I will be brief. I put on record my support for Amendments 30 and 98, and for the sentiments expressed by my noble friend Lady McIntosh of Pickering. I cannot imagine what good reasons there can be for opposing this amendment. I appreciate that a number of directives and regulations will be incorporated into our law, but not this important treaty provision. As other noble Lords have already said, a hallmark of a civilised country is how one treats one’s animals, and recognition of animal sentience is key to that.

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These amendments are important and we hope that the Minister has heard the strength of feeling from around the Chamber on these issues. By far the easiest thing to do is to adopt the amendments that we have proposed or some similar wording, on which we are happy to take advice. I hope the Minister sees the sense of this position and is able to support the amendments in this group.

[Lord Davies of Stamford]

Does my noble friend agree that the excuse that the Government cannot accept this amendment because another Bill may be coming along on the same subject cannot be accepted as genuine? If the Government do bring forward another Bill on this subject, there is absolutely nothing to stop them, if they so wished and if Parliament agreed, modifying the amendment as it is incorporated in the Act.

[Baroness Jones of Whitchurch]

That is our position: we should have this amendment now but work on it in the longer term. I am sure we could all find ways of improving it. The easiest and most honourable thing is to transpose what was in the treaty and move that wording over, then move on to something better for the longer term. I agree with my noble friend.

European Union (Withdrawal) Bill

Lord Davies of Stamford Excerpts

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

[Lord True (Con)]

My Lords, I fear I must intervene at this point, having been restrained a little earlier. I did have some amendments down which I thought were rather germane to the transition period potentially, on which noble Lords could take different views, but in the interest of making progress I thought that those issues could be more intelligently addressed once we knew a bit more about the progress of negotiations.

I must point out that, prior to that, four groups of amendments had occupied your Lordships’ House for five and three-quarter hours. At that average rate of progress and with 85 groups still to consider on the Marshalled List, many of which have been tabled by noble Lords who are concerned about leaving the European Union, we will need 13 more days in Committee, sitting for nine hours until midnight every day, with no dinner break and without considering any other business. With all respect, I do not consider that that is a good way to make progress or that it is sufficient progress to make. I think that a number of your Lordships will probably agree privately with those reflections.

We have a 19-clause Bill here, to which already your Lordships’ have tabled 67 new clauses. Perhaps some of these statistics might be noted outside. The amendment to which I speak is such a new clause.

I feel that, with all respect—

[Lord Davies of Stamford (Lab)]

My Lords—

[Lord True]

The noble Lord has spoken a great deal in the past few days; I would like to continue my remarks, if I may.

The important issue that is raised here is a perfectly good issue on which to have a debate in the Moses Room or on an Unstarred Question. These are matters of great importance. I strongly disagree with the noble Baroness who said that we had not made progress in this country: we have made a great deal of progress in this country. The performance of this country on gender equality, work/life balance and carers has been transformed in my lifetime. It needs to go further, but I cannot accept—

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[Lord True]

I did not make that suggestion, and the record will show it. I was coming to make some suggestions about how we could address this as a House. We have had some outstanding debates in this House from committees of your Lordships’ House on broader policy questions that arise from this difficult exit process. This is an extremely important issue, as I acknowledged at the outset, which deserves to be considered and continually considered in your Lordships’ House. I am merely saying, with great respect, that perhaps the usual channels should give some consideration to ways in which some of the issues that have been raised on this quite narrow Bill could be discussed—but, since I have been invited to explain why, it is nothing to do with the matters concerned.

By the way, the noble Lord cannot argue that because progress has been made by one judicial process it would not have been made by other processes. After all, huge progress has been made in the United States of America, which does not accept the judicial authority of Luxembourg.

This worthy amendment seeks to raise and bring before your Lordships’ House an important subject that your Lordships should consider and hold dear. However, the amendment is absurd in what it asks the Government to do—and that would be true if it was applied to any other field of public policy. So far in Committee we have had a series of general public policy debates. We have had several today which have been cloned, as it were, on to the Bill. The amendment wants Ministers to be required by law to watch only EU law as it develops and give regular reports to your Lordships’ House whenever a proposal comes forward on what should happen. A new principle is being grafted on to the law for this one issue.

I could reverse the question: why for this worthy policy only? Will it be submitted in the rest of Committee as we proceed on different aspects of public policy on all these new clauses that we should have a process whereby Ministers are required to watch and report on this and that after we have left the European Union? That is not very sensible. Our Ministers and Government should watch the legislation brought forward in every advanced country of the world, not only among our European partners, but not have this specific process clogging up the statute book.

The remarks of the noble and learned Lord, Lord Brown—I am sorry, I can never remember his full title; I know it has got something to do with living in a leafy place with a wood nearby—on the previous group were absolutely correct. He made the point that we had discussed the Charter of Fundamental Rights before.

So, with the greatest respect, I oppose this amendment for the reasons I have given. It is not a sensible process on any aspect of law to ask any future Government to specifically watch the development of debates on future policy within the European Union and bring reports to your Lordships’ House. That is simply not practical legislation.

I have the highest esteem for the noble Baroness, as she knows. I recognise that she is passionately committed to these issues, as is the noble Baroness, Lady Burt. They are trying to bring issues they care about before the House, but they do not have to do so on this Bill—and certainly not in the context of an amendment that will not work in practical terms.

We have been sent a Bill by the other place that is to provide for withdrawal from the European Union—not to provide a basis for a series of lengthy Second Reading-like debates on different aspects of public policy. That is the way we are drifting. It is why we took five and three-quarter hours to debate the first four groups and why, if we continued at that rate, we would have another 13 days to get through. The amendment is not practical and will not work. It raises an important issue, but we should move on. I will give way to the noble Lord now.

[Lord Davies of Stamford]

I am grateful to the noble Lord. He has been implying—rather more than implying—that noble Lords in this debate have been wasting time; that they have not been getting to the bottom of the subject or have been talking about irrelevancies. Is that what the noble Lord means to say—in other words, that we have not been doing a good job on this Bill? It seems to me that we have fairly elucidated the quite complex details in this proposed legislation so far. It is an enormously important matter and we can scarcely be accused of spending too much time on it. Our debates are being followed carefully by the country as a whole—and rightly so. If the noble Lord has any evidence of someone who has been filibustering or wasting time, I hope that he will bring it forward.

[Lord True]

My Lords, I could well be tempted and I suppose that it depends on how quickly you can see paint dry. I leave it to people outside your Lordships’ House to judge the progress that we have made in the first four days, despite some of the undertakings and understandings of the Opposition Front Bench. Perhaps I may say that I greatly value and respect the Bench whose behaviour has been absolutely admirable and exemplary. I do not think that we have made fast enough progress, which is not justified. There are important issues to raise and I have simply suggested that these are some things that, as with the reports of your Lordships’ committees, could be discussed in other forums—but surely not during consideration of this little 19-clause Bill with a rather narrowly defined purpose and given all the other legislation that we have coming forward.

I oppose this amendment. It suggests a new mechanism for the Government in relation to our future relations with the EU which is unnecessary. I look forward to seeing the progress that the noble Baroness wishes to see being made.

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Moved by

[Lord Davies of Stamford]

43: Schedule 1, page 16, line 27, leave out paragraph 4

[Lord Davies of Stamford]

My Lords, it is not easy to generate a great deal of excitement at this time of night about an item of jurisprudence, but I rise to speak about the Francovich principle, which is extremely important both as a general principle—in fact, I do not think that there is any more important principle in our legal system—and as an instrument for driving ever-better standards of governance and of output by the public sector. Let me explain this briefly.

The Francovich case, as I think noble Lords will know, and certainly all noble and learned Lords will know very well, is a piece of jurisprudence dating originally from 1991 that has been with us for 25 years. It has become very much part of the scene, and I think that without exaggeration I can say that it is part of the political and legal culture that we have created in the European Union over that time. It has been extended by jurisprudence so that it covers states, public authorities and agencies as well as local government, and more recently it has also been extended to cover the private sector. What the principle says is that where an individual, a corporate body or a state body has been in breach of union law and corporate or private individuals have suffered thereby, they have the remedy that the courts concerned are able to impose damages proportionate to the losses incurred by those who have suffered as a result of the bad governance concerned.

When I say that it is a very important principle and a very important pragmatic instrument, let me explain that. Surely the very important principle here is that the state must be subject to the law. If I go out and break the law, I can be arrested, charged and eventually fined, or even sent to prison in certain cases—and I can certainly be sued for civil damages for negligence, breach of the law et cetera. If, however, state bodies are immune from the law, the relationship between the citizen and the state is very different from the one we like to think exists in a constitutional democracy. That principle is very important and it will cease to be enshrined in law if we do not amend the Bill as it currently stands.

The valuable, pragmatic instrument to which I referred is simply that the existence of the Francovich judgment, which—as the Library told me—has been cited by over 300 cases since and has played a major part in many decisions. If I had more time I would digress on the bad planning decisions that have been reversed and the beaches and rivers that have been cleaned up as a result of the working of this principle. The principle drives better government the whole time.

I dare say that the Government, in their contribution to the debate, will say, “It doesn’t matter because when we leave the Union we can fall back on judicial review”. Judicial review is a creation, of course, not of European jurisprudence but our own jurisprudence; it is a very valuable principle and a valuable achievement over the past 50 years. In my view, as I have already argued, it is not quite as important or valuable as the Francovich principle, but nevertheless it is a splendid thing. There is a big difference between judicial review and Francovich, because under judicial review, you cannot get any damages. You can spend £3 million or £5 million—I have no doubt that noble and learned Lords will tell me any amount of money you want—by running the case, but you will not get the damages that you would get under the Francovich case. All of us who have been involved in government know that there is nothing more terrifying for any Minister than the prospect of being exposed as responsible for the loss of money in their department. Indeed, the political life expectancy of any Minister who finds himself in that position is frankly a matter of hours rather than days. So the risk of having damages awarded against one is a very real threat to anybody in a position of responsibility—chief executive of the local council, chief executive of an agency, a Minister or whoever—and it makes everybody stop to think extremely carefully. That is what we are talking about in the amendment.

Going through the Bill, all of us face a great difficulty. We have a choice to make and I do not think that any one of us is completely clear on how we should make it. Hopefully, we will have taken a decision by the time the Bill emerges from Report, but it may take a little while yet. The choice is this: do we believe the Bill or the Government? If we believe the Bill, all these rights and remedies and protections are disappearing. That is what the wording of the Bill before us says—that Francovich has been abolished—quite unambiguously and clearly. In other parts of the Bill, as we have seen today and on other occasions in Committee, it is the same story. We were talking earlier about family rights and labour rights and so forth, and it looks as though some of those are not being protected—even animal rights are not being carried forward on the same terms, with the wording being changed and softened and so on. There are subtle ways in which rights and protections are being withdrawn. That is what you get from reading the Bill.

What is more, the Government continually tell us that all the Bill does is make sure that there is no legal uncertainty at the time of Brexit and that we will simply carry forward retained law into British law. In fact, there is an agenda in the Bill that is quite blatant to anybody who reads it. It is not a hidden agenda; it is quite obvious. It is a kind of power grab by the Executive at the expense of the citizen. The European Charter of Fundamental Rights is going, which is clearly a loss to the citizen. Again, the Executive cannot have the charter prayed in aid against them.

The most concerning aspect is of course the Henry VIII clauses that we have not yet come to, which constitute an extraordinary power grab by the Executive at the expense of Parliament. We have it here again with the Francovich issue. Again, it is a power grab by the Executive, who want to abolish this because it is a trial and a problem for them and the state. They have to perform or else they have to pay up and get humiliated. That is what we see.

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[Lord Davies of Stamford]

The noble Lord, Lord Pannick, dealt with that point. In practice, damages are not usually available under judicial review. The general view of the public is that there is a very small chance of getting damages that way. That is the difference between that and Francovich, and it is very important.

[Lord Keen of Elie]

With respect, it is not. I have to say to the noble Lord that Francovich damages are a rare remedy, as I have already indicated. Damages in the context of judicial review are not so uncommon as the noble Lord was suggesting. They are available as a remedy, albeit in limited circumstances.

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[Lord Keen of Elie]

In response to the noble Lord’s observations, we are dealing in the context of Francovich with the court having to find that there has been a serious failure with regard to an EU obligation, and I suggest that that is not very far from the test of misfeasance in the context of judicial review.

[Lord Davies of Stamford]

My Lords, I am grateful to everybody who has taken part in this interesting debate. I think that anybody listening in from outside will be impressed that we are working hard on a very serious matter at quarter to one in the morning.

[Lord Goldsmith]

And not drinking cocoa.

[Lord Davies of Stamford]

Yes, not drinking cocoa, indeed—absolutely right.

First of all, I must say that the noble and learned Lord, Lord Keen, has misunderstood a number of things. One is that I think he has got it wrong on the issue of damages. The noble Lord, Lord Pannick, is representative in what he said of the great majority of legal opinion on this subject and of the experience that any of us have had—via our constituents or otherwise—in this area of the law.

The second thing is that I think the noble and learned Lord has misunderstood that the major part of the importance of the Francovich system or jurisprudence is that it is a potential deterrent to those who might be inclined to misgovern us. People know that they are subject to this particular sanction if they do, and that has enormous effect. The fact that the power is used 25 times is not negligible—28 times I think it is in this country and 300 and something times over the Union as a whole. That does not mean to say that it is without effect, or that its effect is limited to those occasions. It would be very naive to say that; its effect is created by the presence of that particular sanction and means of redress for those who have been wronged in this way.

I also do not think that the noble and learned Lord is right in saying that the whole matter of Francovich is not very important because it applies only when there are serious issues. The principle of—to put it in language that I think he will understand—de minimis non curat lex—applies to everything really, in the Roman law tradition anyway. So it is not at all surprising that it applies in this case.

I want to leave the Committee with complete clarity about this, and there are three separate issues here. One is what we do about people who have a claim, or think they have a claim, under the Francovich principle—and I continue to call it that—and it is overtaken by events because they have not litigated before Brexit or they are half way through or they have not expressed their claim or put it in at all. What happens about them? That is important, because it may only be three or four people, and we should always be concerned about justice for anybody. I do not in any way denigrate people who have taken up a lot of time to talk about their particular subject; it is a perfectly respectable concern to have. But my concern is not really with that—mine is to my mind much more significant. Going forward, do we have the Francovich principle or something like it in our own legal system, both to enshrine that principle that the state is subject to the law like everybody else, which as I say is so important, and to make sure that we have that instrument of good government, which has a real deterrent effect on the behaviour of central and local government, public corporations and, indeed, the private sector? That is very important to me.

I disagree very strongly with the noble and learned Lord, Lord Keen, when he says that the Francovich system does not make any sense when we have left the European Union, because there will not be such a thing as European law here. He is quite wrong about that; there will be retained law for decades, no doubt, until it is changed by statute—if it is changed by statute over that time. It is called retained law; it is exactly the same law. The difference may be that, whereas you could litigate under it before Brexit, after Brexit you will not be able to litigate under it at all, which seems completely unreasonable. That means the loss of remedies and rights that we currently have in respect of exactly the same laws, because they are exactly the same provisions with exactly the same wording having exactly the same effect, whether they are today on 5 March, or on 1 April next year after we have left. That is what the whole principle of retained law is, as I understand it—and I think that the noble and learned Lord knows that.

It is my concern in this amendment to make sure that, when the citizens of this country have current rights and protections, they should enjoy all those after Brexit. I thought that the Government were in favour of that principle. We heard earlier from another Minister, the noble Lord, Lord Duncan, that he believes that that is the case and favours that principle—and I think that that principle is enormously important.

Then there is the third issue, which I raised—and it is probably not the last time that I shall raise it in this House. The experience of Francovich is such that I believe that it should be carried forward into the whole corpus of law in this country, Scots law and English law. We continue to have these rights and these remedies. I believe their jurisprudence in this case to be a considerable advance of civilisation in the European Union over the last 25 years; there have been many such advances and, if we are going to carry forward the assets that we take over rather than throwing them away on Brexit, we should make sure that we carry forward this one. That is not a matter for this Bill; what is a matter for this Bill is the second point that I make, which is to make sure that in respect of retained law the rights that currently exist will be carried through and not abolished.

I hope that the Government will think about that between now and Report. I would certainly welcome the opportunity to discuss the matter with them before we decide how we can take this matter further. In the circumstances, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.