European Union (Withdrawal) Bill

Lord Forsyth of Drumlean Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Foulkes of Cumnock (Lab)]

My Lords, in moving Amendment 49 I shall speak also to Amendment 52. I read the other day that the two most disbelieved statements are, “The cheque is in the post” and, “I am from the Government and I am here to help you”. Here is another one: this amendment is designed to be helpful to the Government, and I hope they will genuinely believe that. It seeks to formalise the agreement reached in December 2017 in the UK/EU joint report in relation to EU citizens and their ability to refer cases to the CJEU.

Clause 6(1)(b) states that, “A court or tribunal”,

“cannot refer any matter to the European Court on or after exit day”.

However, paragraph 38 of the joint report agreed by the UK Government last December states:

“This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part”.


We are not taking away any powers from the courts or tribunals. They decide whether to seek advice, and when they get it they then decide whether to take account of it. It does not in any way undermine the principles the Government have adduced for withdrawal. I hope, therefore, that this is helpful. All I am suggesting is that the joint agreement the UK Government have put their name to should be incorporated into the Bill, and I have helpfully provided an amendment to enable them to do that.

I also draw the Minister’s attention to the draft withdrawal agreement presented on 28 February by Michel Barnier to the Brexit Steering Group. I refer specifically to Article 83, which states:

“Where in a case before a court or tribunal in the United Kingdom a question is raised concerning the interpretation of the Treaties or the validity or interpretation of acts of the institutions, bodies, offices or agencies of the Union relating to facts that occurred before the end of the transition period and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question in accordance with the procedural requirements laid down in Article 267 TFEU. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests”.


Do Her Majesty’s Government agree to that proposal by Monsieur Barnier in the draft withdrawal agreement and do they plan to amend the Bill accordingly?

[Lord Forsyth of Drumlean (Con)]

How would the noble Lord’s proposed new provision work in the event of there being no agreement and is he not anticipating the terms of an agreement?

[Lord Foulkes of Cumnock]

As I understand it, all that we include depends on there being an agreement. It is not just my amendment; it is the whole legislation. I beg to move.

[Lord Liddle (Lab)]

My Lords, I fully support my noble friend’s decision to raise these questions, which are very important. I suspect the Minister will say that the Government have given a commitment that, when the withdrawal agreement is concluded, it will become before this House an Act of Parliament and we will therefore have the opportunity to debate it then. However, there are two powerful reasons why citizens’ rights should be incorporated in this Bill now.

The first is the high level of anxiety that EU citizens have about their position. I am sure there is relief that, in principle, an agreement was reached in December, but there could still be many a slip between cup and lip in its ratification. Those citizens’ rights should be guaranteed now to provide reassurance.

Secondly, I listened hard to an earlier contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he said that the main utility of this Bill is to make sure there is legal certainty if we crash out of the EU—because, assuming that negotiations work, there will be a transition period during which EU citizens’ rights will not be affected. The problem we are dealing with particularly in this Bill is the risk of a crash-out. Of course, the Government will say to us, “Well, we’re very determined there won’t be a crash-out”, but they will not exclude that possibility. It was clear from the intervention at the end of my noble friend Lord Foulkes’ speech that the noble Lord, Lord Forsyth, actually relishes the possibility of a crash-out because he thinks, wrongly, that this is some bargaining leverage we have over the EU.

[Lord Forsyth of Drumlean]

My Lords—

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[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord, but he must not put words into my mouth. I simply asked a straightforward question as to what the position would be if this amendment were carried in the event of no deal. Clearly, it would create enormous confusion. There is the separate issue of why we should allow extraterritorial jurisdiction on the part of a foreign court, but I was not embarking on that particular argument. If this is the best the noble Lord can do to support the amendment, I am sure he will support the noble Lord, Lord Foulkes, in withdrawing it in due course.

[Lord Liddle]

The noble Lord, Lord Forsyth, is clearly saying that he thinks there is a real possibility we are going to crash out of the EU. We have heard that from him on other occasions and from people who agree with him. David Davis wrote to Conservative MPs to say that it was a possibility that we would not pay up the money unless we got a good free trade agreement. The fact is that any deal is better than no deal: no deal would be an absolute disaster for this country. But if there is a serious risk of no deal from Members of the governing party—I am sure the Government do not want that but there is pressure in that quarter—I believe we would be right in this Bill to guarantee the rights of EU citizens living in this country.

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[Lord Forsyth of Drumlean]

I am most grateful to the noble Lord and I understand the point he is making about international standards and international bodies. However, the effect of his amendment is, surely, that the British Parliament would be tied, in future, to decisions made by the European Union and the European court. Why does he not trust this Parliament to set regulations that are appropriate for the standards for our own people?

[Lord Haskel]

I do trust Britain to set its own standards, I just do not want to see them lowered. I am concerned that they will be lowered because of trade negotiations and the give and take that will go on in negotiating withdrawal.

[Lord Forsyth of Drumlean]

On that point, why does the noble Lord not think it possible that we might set higher standards, as for example we have done in respect of paternity rights and other matters?

[Lord Haskel]

I would very much welcome setting higher standards and am sure that all noble Lords would do so. My concern is that we should not lower them, because that is one of the rights we should not be giving away.

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[Lord Hope of Craighead]

I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well.

[Lord Forsyth of Drumlean]

Before the noble and learned Lord sits down, in summary, was he saying that the amendment of the noble Lord, Lord Foulkes, is completely unnecessary?

[Lord Hope of Craighead]

With great respect, I would not put it in that way. It has given me an opportunity to bring forward an example which I am hoping the Minister will be able to comment on. The noble Lord has raised an important point. We all care about citizens’ rights. I hope I have drawn attention to the context in which one looks at the amendment. It is a well-crafted amendment to which the Minister may have an answer along the lines I have suggested.