Brexit: Discussions with the European Union

Debate between Lord Foulkes of Cumnock and Lord Mackay of Clashfern

Thursday 20th June 2019 Lords Chamber

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords—

[Lord Mackay of Clashfern (Con)]

My Lords, might there be an opportunity for the House of Commons to indicate what alteration to the present agreement it is seeking? I have not yet seen a detailed amendment proposed in the House of Commons to the existing agreement in the hope that a modification of it could be agreed.

[Lord Callanan]

As always, my noble and learned friend makes some wise points, but an amendment was agreed in the House of Commons: the so-called Brady amendment on alternative arrangements to ensure no hard border. That remains the one positive amendment passed, indicating where support in the House of Commons might lie, but of course we need to persuade the EU of the merits of that.

Healthcare (International Arrangements) Bill

Debate between Lord Foulkes of Cumnock and Lord Mackay of Clashfern

Committee: 2nd sitting (Hansard): House of Lords
Thursday 21st February 2019 Lords Chamber

[Lord Foulkes of Cumnock]

I was going to intervene in the speech of the noble Lord, Lord Butler, but this applies equally here. I have to be careful not to give away too many secrets and internal arrangements, so this is a purely theoretical example. Certainly that can be done, but if a Chief Whip tells you that voting against this is a fatal Motion and urges you not to do it, when that kind of situation builds up it is very difficult. It may well happen. It may already have happened, without giving too much away.

[Lord Mackay of Clashfern]

If a defect was pointed out in a statutory instrument, I would consider that a matter for stopping it going forward. Most of the arguments I have heard in recent times do not point to any mistake in an instrument. They are more theoretical. I do not wish to examine them in detail—I have done that once—but it is important. That is what was proposed when these instruments were originally laid. It is much easier to amend an instrument by taking it back and starting again than with an Act of Parliament. That is the appropriate procedure for correcting a defective instrument, and it happens, not necessarily formally, but quite often instruments are withdrawn when a mistake is pointed out; they get round to writing it again and hopefully the second time it is improved.

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Mackay of Clashfern

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

[Lord Mackay of Clashfern (Con)]

My Lords, I want to make two short points. The first is that the precedent of giving rights in other countries when there is a separation is set up very well by the arrangements between ourselves and the Republic of Ireland in relation to Irish citizens and their rights in our country, which are guaranteed by statute in a number of cases.

Secondly, on the idea that we have to refer all these matters to the European court, anyone who reads the judgments of our courts from day to day will realise that the fairness they exhibit towards foreign citizens is of the highest possible standard. I know of no country in the world and no court in the world that succeeds in getting a higher standard; there are others that have an equally high standard, but I know of none that has a higher one. It would be a most retrograde step for this House to do anything that suggested to people in Europe that they could not get justice from the courts of this country.

[Lord Foulkes of Cumnock]

Just to clarify, my amendment does not suggest that—quite the reverse. It would be the British court or the British tribunal that took the decision whether or not to refer such matters to the CJEU. It would still be the decision of a UK court.

[Lord Mackay of Clashfern]

I think that is meant to be an intervention, because I have not quite finished. The situation is that the British courts, the Supreme Court in particular, have discretion to look at any judgment that they wish, and to raise any question they wish in these judgments. There is nothing in the present Bill that impedes that, except in respect of questions of European law, because the courts themselves, and the members of the Supreme Court, have been anxious that if they paid too much attention to the European court after Brexit, they might be accused of being involved in politics. They have sought a direction from Parliament on this matter, and that has been attempted, and I hope it is successful.

I personally do not share the animosity that exists in some quarters towards the European Court of Justice. It is over 30 years now since I often appeared before them, and I have nothing but praise for the way in which they do things. They do things very differently to us. There are far fewer oral hearings—at least, there were when I did it, which was a long time ago. There is much less oral pleading than there is in our courts. Actually, our courts have moved slightly in that direction in recent years, since I was last involved with them—and in some cases quite far in that direction.

The respect I have for the European Court is of the highest order, but I do think there is a difficulty because, after Brexit, no judges or advocates-general of the British Bar will be members of the court or advocates-general in the court. That is an important factor to be taken into account in the arrangements. I am not part of the negotiations—I have nothing to do with them—but I do believe that that point has to be taken into account. There is a usual rule that the people administering justice are the people who are in accordance with the arrangements between states. International courts, for example, may not have representatives from all the states that appear before them, but there is a question to be considered in that connection, because the Court of Justice referred to in the amendment will not be the Court of Justice as it is now.

--- Later in debate ---

[Lord Foulkes of Cumnock]

I am obliged to the noble Lord, Lord Kerr of Kinlochard, for pointing out that although the Minister has all the legality behind him, perhaps his argument is lacking in humanity. It is humanity that the European Union citizens deserve, not the legality that we have heard.

I was about to conclude by saying that this may not be the right time but it is certainly the right place. I look forward to returning to this, and I know that many noble Lords who have spoken do also, to argue and to fight for the rights of not just UK citizens on the continent, who matter as well, but the European Union citizens who have given so much to this country over the years and continue to do so.

[Lord Mackay of Clashfern]

It is worth pointing out that these citizens have existing rights by law in this country, and that will remain the case until these provisions are repealed, if and when they are.

[Lord Foulkes of Cumnock]

The noble and learned Lord is a distinguished lawyer and had great distinction as the Lord Chancellor. Perhaps he can explain to the European Union citizens in Scotland, where he and I both live, why they were allowed to vote in the Scottish referendum but not in the European Union referendum. Many of them have asked me but I do not have the intellect or ability to answer them; perhaps the noble and learned Lord can.

[Lord Mackay of Clashfern]

That does not appear to be entirely relevant to the present debate and it is a bit late anyway. I had very little to do with the formulation of the franchise.