Private International Law (Implementation of Agreements) Bill [HL]

Lord Goldsmith Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[The Deputy Chairman of Committees]

Lord Judge, I am afraid that there is a problem with your connection. I suggest that we move to the next speaker and hope to come back to the noble and learned Lord at the end of the list, by which I hope his connection will be better. If that is acceptable, I ask the broadcasters to please unmute the noble and learned Lord, Lord Goldsmith.

[Lord Goldsmith (Lab)]

My Lords, I was looking forward to hearing the noble and learned Lord, Lord Judge, and saying that I agree entirely with what he said. I still imagine that I will agree with him, even if he has to come in a little later in the debate.

I start by declaring two interests. The first is as a practising lawyer whose practice includes international, commercial and public law cases, so some of the things discussed today affect the practice that I carry on. The second, and more important for present purposes, is that I am the recently appointed chairman of your Lordships’ EU Sub-Committee on International Agreements. It is in that capacity that I put my name forward to speak today.

My focus is on Clause 2. I have not spoken in any of the other debates that have taken place but, for all the reasons powerfully advanced by my noble and learned friend Lord Falconer of Thoroton, my noble friend Lady Taylor of Bolton and the noble Lord, Lord Pannick —and in the future, no doubt, by the noble and learned Lord, Lord Judge—I see this as a very unusual and constitutionally unprecedented thing. I could not improve on the speeches made already, including those of the noble and learned Lord, Lord Mance, in an earlier debate, and the noble Lord, Lord Anderson of Ipswich.

However, I want to deal with one aspect in my capacity as chairman of the EU International Agreements Sub-Committee. It has authorised me to write to my noble friend Lady Taylor expressing its agreement with the conclusion that the Constitution Committee had reached in its report and concurring with its opinion that the clause, if it goes through, would reduce parliamentary scrutiny of international agreements inappropriately.

It is not an answer, as my noble and learned friend Lord Falconer has rightly said, to say that this is dealing purely with technical things. I know from experience that, although they may be technical, they are matters of great moment and matters of great importance both to the people who are making agreements and to this country. It is common for lawyers to be asked to advise which law should be put into an agreement or which law should govern any disputes that have to be dealt with, and the Bill would affect that.

As I understand it, two principal answers have been given about why the Government say this is appropriate. One is that all agreements will have been subject to parliamentary scrutiny, and that is the bit on which I particularly want to focus. The problem with that is that, as the Constitution Committee said,

“current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed”.

That is particularly so because of the gaps in the CRaG coverage—some of them have been mentioned today, such as model law—and the timing of CRaG means that an agreement will have been concluded by the time, strictly speaking, that the CRaG processes come into effect.

I shall quote one paragraph, paragraph 19, from the Constitution Committee’s report on CRaG, Parliamentary Scrutiny of Treaties. Professor David Howarth from the University of Cambridge observed:

“From the Whitehall point of view, everything is perfect. The whole process is under the control of Ministers. Parliament does not really get a look-in until after signature and, even after signature, the CRAG processes are very difficult for anyone to operate, especially in the Commons where the Government controls the agenda.”


That is the problem with CRaG.

The committee which I am honoured to chair may be an important part of the response to that lack of scrutinising ability. We are only in the foothills of our work, and we do not yet know how well this will work. Quite a lot will depend on how the Government engage with us and with Parliament more generally. I hope that they will wholeheartedly engage not only once an agreement has been concluded but at earlier stages. I know there is some disappointment already that, for example, the amendments made by this House to the previous Trade Bill have not found a place in the current incarnation of the Trade Bill.

Some assurances have been given in the context of the conclusion of trade agreements. Dr Fox made some important statements about the consultation and engagement that will take place. In its paper Public Consultation on Trade Negotiations with the United States, the DIT repeated the assurances that it gave. For example, paragraph 39 of that report repeats commitments made in its earlier paper, including,

“confirmation that at the start of negotiations, the Government will publish its Outline Approach, which will include our negotiating objectives, and an accompanying Scoping Assessment, setting out the potential economic impacts of any agreement.”

The second argument perhaps put forward is that the issue will be only yes or no and therefore the affirmative procedure, as proposed in the Bill, will be enough. I am not persuaded by that argument. It will often not be a question of yes or no. For example, there are treaties which contain options for the member states, such as powers to derogate from particular provisions. Under this binary approach to approval or engagement by Parliament, how will those treaties be considered? Or there may be methods of implementation which are available under the agreement. But more fundamental is the fact that if there is a power to amend that could strengthen the hand of the Government in negotiations, and there is some evidence that in some countries where scrutiny is not limited to yes or no, that is the case.

It seems inevitable that unless the Government drop this, as many noble Lords are urging them to do, this will come back on Report. If in doing so, the Government intend to rely upon the argument about the effect of parliamentary scrutiny under CRaG, they will need to give a very clear explanation of how they will engage with Parliament and the EU International Agreements Sub-Committee so that we can see the reality of what parliamentary scrutiny of the negotiation and conclusion of agreements will be. I look forward to those explanations being given, and in the meantime I support the amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, like the noble Baroness, Lady Taylor, and the noble Lord, Lord Foulkes, I am not a lawyer, but I care about democracy and I care very much that if the Government make promises, they should actually deliver on them. Clause 2 is a case of the Government reneging on promises made only last year. I voice my concern about Clause 2, which would allow Ministers to subjugate our national law to international agreements and the jurisdiction of foreign courts, with minimal parliamentary scrutiny from people such as noble Lords, who actually know what they are talking about.

Last year, the Government promised us that we would take back control of our laws and our courts; there was no caveat that we would then delegate our laws to international organisations with nothing more than a tick-box exercise by Parliament. The clause gives far too much power to international trade organisations and allows model laws to be imposed on us at the whim of a trade Minister.

I am also concerned that this measure would be better addressed in the Trade Bill, so that we could develop a comprehensive and coherent system of scrutiny for agreements relating to international trade. Otherwise, we end up with different scrutiny arrangements for trade agreements and the private international law agreements that might go alongside them. Will the Minister please explain how this clause fits with the Government’s promise of Parliament taking back control of our laws and courts? I look forward to Report and the vote that I am positive will happen.

Northern Ireland (Executive Formation) Bill

Lord Goldsmith Excerpts

Report stage (Hansard): House of Lords
Wednesday 17th July 2019 Lords Chamber

[Lord True]

I did not count how many words there were in her conditional thing about “expressly used to force through something that has been rejected by Parliament, blah blah blah”, if I may say so, with respect. That is a construct that was created, and we have heard it from the noble Lord, Lord Pannick. It is not possible to construe what the motive of a Prime Minister in a private audience might be for seeking a Prorogation. I do not think we should ask the courts to do that, although we have the right to do so. On her other point, we have statute. This is not about stopping Parliament legislating. I tried to make this point earlier: after the Gina Miller case, Parliament legislated. We are leaving the European Union, and in law we are leaving on 31 October. I am afraid her arguments do not stand up.

I want to finish, and that will please noble Lords. I believe it is a bad way to treat Parliament to festoon a fast-tracked Bill with extraneous matters such as this. In my submission, it is a particularly insulting way, in this case, to treat the good people of Northern Ireland. They deserve far better than having their future provision made the plaything of others with other axes to grind. This is a Bill about the formation of a Northern Ireland Executive, which we all very much wish to see. We should return to that.

Amendments such as those before us were rejected in the House of Commons. Elected Members have had their say on this matter. Are your Lordships really going to reopen all this and slug it out on this Bill—this Northern Ireland Bill—day after day on a fast track in an undignified ping-pong to provide a battlefield for hardline remainers and devoted respecters of the people’s choice? Surely we can do better than that. Let us dispense with this parliamentary chicanery, reject these amendments and deal with the important business relating to Northern Ireland. The Commons rejected the amendments. Let us do the same and move on to the business in the Long Title of the Bill.

[Lord Goldsmith (Lab)]

My Lords, as I said on Monday, I reject the idea that this amendment does not have an important impact on Northern Ireland too, not only because it ensures that the supervision and reporting provisions that are now in the Bill can be considered constructively by Parliament, but because—and who has forgotten this?—Northern Ireland has been at the centre of all the debates that we have had in this House about Brexit. The possibility that we should be forced to leave without a deal, I would have thought we would all agree, is one that deeply affects the people of Northern Ireland.

I had thought that on this issue we were approaching something like unanimity that it would be constitutionally improper and wrong in principle to suspend Parliament in order to push through the final stages of the Brexit arrangements without Parliament being in a position to oversee, comment on or effectively have any role in that. Those who have said that this would be wrong are not only Cross-Benchers—the noble Lord, Lord Anderson of Ipswich, made it very clear, in an extremely good speech, why that was so—but others on this side of the House, such as the Liberal Democrats, as well as many distinguished Members of the Conservative Party. We all know about Sir John Major’s statement that he would judicially review an attempt to push through Brexit without a deal, and the noble Lord, Lord Howard, has been reported as saying that it would be wrong and a “very bad idea” to suspend Parliament, and I respectfully and fully agree with him.

As I said in the debate on Monday, none of this means that the amendment would stop Brexit taking place. There is, as others continually remind us, existing legislation. What is more, we cannot unilaterally stop our departure on 31 October because, as a matter of international law, unless that is extended by agreement between the EU and ourselves we will leave on that date. But that does not mean that Parliament should not have a role in what takes place. It can change its mind. It can do many things, including change the law. It would be grossly wrong—a perversion of our constitutional traditions—and irresponsible, in my view, to prevent Parliament being able to present, comment, oversee, supervise and, if it so chooses, take other action. That, and nothing else, is what this amendment is about.

Of course, the incoming Prime Minister—let us assume it is Mr Johnson—may wish to proceed without further inconvenience from Parliament. Let him persuade Parliament of that. Let him persuade Parliament that the route he has chosen will succeed. That is what parliamentarians should do and what we should do in a democracy. He cannot and should not adopt a royalist approach, as King Charles did. That is what we are trying to prevent, and so many Members of this House are concerned about that. It is Parliament that safeguards our freedoms and ensures that we remain a free land; that is how we do our democracy. To allow that to be set aside would be wrong.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, we have begun a debate today on the extension of Executive formation opportunities in Northern Ireland. I take the opportunity to return our focus to Northern Ireland for a brief moment. I do so recognising that precious few of the noble Lords who have thus far spoken chose to focus on Northern Ireland today. There have recently become a remarkable number of experts on Northern Ireland, but it appears they are not here during this part of the discussion.

It is no surprise that this is a challenging time for Northern Ireland. It had been our hope that by the coming August we would have secured a resolution and brought the parties together in such a way that an Executive could have been formed. I believe we are moving in the right direction; I now genuinely believe that there are real prospects of doing so.

This Bill has a very simple purpose. As it began its journey, it was simple and in very few paragraphs. We need a little more time, and the ambition is to extend that to 21 October, with a possible extension thereafter into January to allow for that Executive to re-form.

The request for updates on the talks in Northern Ireland is important; I do not doubt that for a moment. The noble and learned Lord, Lord Goldsmith, rightly says that Northern Ireland has been at the centre of so much of Brexit, but I must draw a distinction between Northern Ireland at the centre of Brexit as the border question has played through and the talks themselves. They need to be recognised as being in two different categories, and it is important to do so.

A number of noble Lords—not least the noble Lord, Lord Anderson, who opened the debate—said that this is really not just about the reports. The debate that followed expressly shows that it is not just about those reports. He quoted Iris Murdoch. I am a big fan of Iris Murdoch. I was reading her book not long ago. Thinking about these reports coming in in small doses, there is a quote from The Sea, The Sea:

“One of the secrets of a happy life is continuous small treats”.


Whether these reports will be continuous small treats remains to be seen. My fear is that those reports will not show a great deal because the discussions within that room are not particularly useful for wider debate at this time. But I dearly hope that we do not need this extension and that we will return to normal government in Northern Ireland. But I fear right now that it would be remiss of us as a Government if we did not seek to extend.

The amendments touch on much deeper issues than I am normally called on to talk about. It will not come as a surprise to the noble and learned Lord, Lord Goldsmith, that I have not received a call from Mr Johnson. Who knows? I might receive one next week. Who knows what is going on at this particular moment.

The important thing for me to stress today—and I do not think it is labouring the point—is that we need to be sure that when we speak of Northern Ireland we are clear in the message that we are sending to the people of that Province. The message that we send today with this particular suite of amendments is a simple one, which is that we can use Northern Ireland for different purposes when we choose to do so. I know that the rest of the debate will focus very significantly on the serious issues of Northern Ireland, but we have not started that part yet. This part is about a constitutional question and, as a number of noble Lords have said, it is about Brexit. So be it. I cannot change the motion in which we have moved in this particular direction. But a number of noble Lords have expressed their views on different sides. For me, the key thing is to keep us focused on the important aspect, which is the delivery of an Executive in Northern Ireland. That must be our principal aim. On that basis, I ask the noble Lord to withdraw his amendment.

[Lord Goldsmith]

We all hope that the Minister receives a call next week, whether from Mr Johnson or Mr Hunt. We want to see him back in that place. But does he not agree that for the people of Northern Ireland, whom I know—although maybe not as much as the Minister—because I was Attorney-General for Northern Ireland for six years, the consequences of a no-deal Brexit, which have been widely described as so damaging, would be just as bad for them as for the rest of the United Kingdom?

[Lord Duncan of Springbank]

The aspect of a no-deal Brexit that has been discussed here is an important one and has been discussed on a number of occasions in your Lordships’ House and in the other place. It is important to Northern Ireland: I do not doubt that because I have seen it myself. I recognise and have said on more than one occasion how important it is and how different it would have been had an Executive been in place during this period, when those voices could have been part of a wider debate. There is not a single person who does not regret the fact that those voices have been silent for far too long when we could have had them contributing, not least on the question of the Irish border. But we are talking today about a simple and focused aspect, which is extending the window during which there shall be no elections in order to secure a newly formed Executive. That is the key to the discussions today and should be the focus. I am also very happy to get a call from Mr Hunt.

The important thing to stress now is that at this point, I do not believe that the amendment takes us in the right direction. On that basis, I ask the noble Lord, Lord Anderson, to withdraw his amendment.

Northern Ireland (Executive Formation) Bill

Lord Goldsmith Excerpts

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

[Lord Adonis]

I think my noble friend is referring to 1974. I have looked that up. Parliament met at the end of October 1974, having had the election. There is no precedent for Parliament not meeting in October. There is no precedent in Britain for a controversial use—a use that would not be generally accepted by most parliamentarians—of the prerogative of Prorogation since 1831, when William IV prorogued Parliament at the request of Earl Grey to prevent the frustration of a Dissolution, which was so radically different a case from the one we have today that it is not comparable. The only case that I can see in any of the Dominions that corresponds to the situation we face now is from Canada in 2008. The then Canadian Prime Minister advised the Governor General to prorogue Parliament. All I can say, having looked at the circumstances of that case, is that it was bitterly controversial. The Governor General thought long and hard about whether to accede to the advice of the Prime Minister. It was immediately after a general election, when the circumstances were very different. If Boris Johnson is thinking of dragging Her Majesty into a controversy as deep as would be involved in banning Parliament from meeting in October, he will be doing a massive disservice not only to Parliament but to all our institutions of state. I hope he does not go there.

[Lord Goldsmith (Lab)]

My Lords, I think it is fair to say that this has been a robust debate. Obviously, I support the amendment to which my name has been added and oppose Amendment 7A, proposed by the noble Lords, Lord True and Lord Forsyth, which would wreck that amendment.

I will deal with the arguments that have been raised against this amendment. I shall start with the first of them, which is that it is inappropriate in the context of Northern Ireland. I would have thought that the question of what parliamentary oversight and intervention are possible in relation to Northern Ireland is of the greatest importance. The Bill as it stands proposes, rightly, that reports will be published about the progress towards the formation of an Executive in Northern Ireland. Should Parliament not be there to receive those reports, to debate them, to consider them and to make recommendations on them, that would be the consequence of stopping Parliament sitting during that period.

I note that David Sterling, the head of the Northern Ireland Civil Service, said only the other day:

“We have lacked that ministerial voice in Whitehall that has championed the cause of Northern Ireland”.


So to find that Parliament was not sitting just at the time when the issues with which this Bill is concerned were coming up would be a great tragedy. So it is very much an issue which Northern Ireland should be concerned about.

But of course it is broader than that. The debate has made that very clear. The argument that the noble Lord, Lord Anderson of Ipswich, started with must be right. If what we are talking about is the possibility that Parliament will be banned from meeting and expressing views during the critical period when we are leaving the European Union—I accept of course that the Bill says what the date is, but it is open to Parliament to do something else if it chooses to do so—to say that Parliament should not be there at that stage is a constitutional impropriety and would be a great assault on our current constitution.

It is said, and it is argued by the opponents of this amendment, that it is there to frustrate the will of the people in relation to leaving. Well, it cannot do that. Nobody suggests that it can do that. As one of those who signed the amendment, I do not suggest that it does that. What it would do is make sure that Parliament was there at the time that decisions were being made so that we did not have a situation where at the time of one of the greatest decisions this country has made in recent times there was simply an Executive and no Parliament to oversee or control them. That would be the greatest assault on the constitutional traditions of which I am so proud, as are so many Members of this House.

As the noble Lord, Lord Forsyth, knows, I admire his debating skills and his opinions, but he has not responded to the question put by my noble friend. I hope that when the Minister gets to his feet he may be able to give a clear answer on whether in fact this can all be brought to an end by a statement that there is no risk and that there will be no Prorogation. Unfortunately I expect that that is outside his power—and I see he is nodding. I suspected that was the case, and we all know why that is so. That would be an end to this debate. As it is, with that uncertainty as to whether Parliament will be allowed to sit during that critical period, we have to do something to allow an opinion to be expressed about that. The gambit would not be doing this; the gambit would be making sure that Parliament was not there at a time of crucial national emergency. That would be the constitutional gambit.

I congratulate the noble Lord, Lord True, on a speech that succeeded in insulting everybody in this House: the Liberal Democrats for not being the party that supported leaving, obviously my Front Bench and me—I fully expected that—his former leader, Sir John Major, for what he said, and others as well, including his current leader, as I have just been reminded. But be that as it may; he is entitled to do that and to take those views. But what he said in attacking the judiciary and the rule of law was completely off target. I fully agree with the noble Lord, Lord Pannick, on this. The judiciary is indeed unelected. I remember losing an important case in the House of Lords—I think that the noble Lord, Lord Pannick, may have been on the other side; he is nodding both enthusiastically and with a smile on his face, so I would guess that he enjoyed the victory—precisely because the House of Lords said in answer to my arguments, “No, we are not unelected. We are there to carry into effect the law, even though that is something that the Government do not want to happen at this particular time”.

Having had the privilege of serving in that role, I know what the rule of law means. You have to defend things in front of an independent and sometimes critical judiciary. Sometimes you persuade the judges and sometimes you do not. However, it is absolutely critical to our democracy that they remain and are not attacked in any way.

Where does that leave us? I was struck by the remark by the noble Lord, Lord True, that the judiciary were not elected, so should not have a say. Of course, the people who are elected are in the other place. We are talking about making sure that those in the elected place are there to express the views that their constituents—the people of this country—believe are right. That is what should happen. This debate can be put to an end by whoever becomes the leader of the Conservative Party in the coming days making it clear that that will not happen—but until then, I respectfully say that this Committee should take the step of following the House of Commons by saying, “We should pass this amendment to make sure that Parliament is there and doing its job when Brexit comes around”.

[Lord Duncan of Springbank]

My Lords, I expect that in years to come constitutional scholars will study this debate and explore many of the arguments. I suppose that it is my purpose to return us to what I hope is the principal purpose of the Bill to which this particular amendment has been appended. This Bill aims to ensure that we can restore an Executive in Northern Ireland in good time. This is a noble aim, with which I think we all agree.

We ought to start by recognising that Members in the other place have already debated and voted on these issues. Of course, the Government agree that Parliament must be kept apprised of progress towards restoring an Executive in Northern Ireland. The Government has already responded to the concerns here by agreeing to bring forward to 4 September the date by which a report will be made.

In many respects, the key issue here—which a number of noble Lords raised, for perfectly understandable reasons—is the need to keep focused on what we are trying to achieve through the reports we are discussing today. That is to ensure that Parliament is kept abreast of the ongoing aspects of the talks in Northern Ireland. However, I have stood here on many occasions and said that it would be inappropriate for me or my right honourable friend in the other place to give a running commentary. That is for one simple reason: we must give a clear and safe space in which those negotiations and talks can unfold. It is perhaps not enough for us to simply say, “Nothing to see here, move on”. We need to recognise that.

The votes were close in the other place, so some noble Lords might argue that we should give Members there an opportunity to think again. However, it is important to point out that the closest vote of all was on the addition of fortnightly reporting requirements, which the Government lost—although noble Lords are not proposing that the other place should be asked to think again on that one.

These amendments tabled by noble Lords are broadly very similar to those already rejected by the other place. They would require the initial progress report, as well as fortnightly ones thereafter, to be considered by Parliament and be subject to an approval Motion. However—again—in many respects, each element of this has nothing to do with the situation in Northern Ireland, which has necessitated the Bill in the first place.

As we speak to one another and the people of Northern Ireland, it is important that we recognise that this Bill serves a principal and singular purpose, which is to ensure that we give an Executive the appropriate space to reform.

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

Lord Goldsmith Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I am grateful to the noble and learned Lord for repeating the Statement made by the right honourable Attorney-General in another place. The purpose of the Statement was to provide the Attorney-General’s opinion on the implications of the three documents produced following the Prime Minister’s dash to Strasbourg yesterday. The purpose was, of course, what the Prime Minister had promised to negotiate, referring to,

“not a further exchange of letters, but a significant and legally binding change to the withdrawal agreement”.

According to the Mail on Sunday—not a newspaper that I necessarily follow in any respect—the Attorney-General is reported to have said:

“I will not change my opinion unless I’m sure there is no legal risk of us being indefinitely detained in the backstop. I am putting my hand on my heart. I will not change my opinion unless we have a text that shows the risk has been eliminated. I would not put my name to anything less”.


Before considering the merits of what the Prime Minister has obtained it is worth considering what has not been achieved. As I predicted in the debate yesterday—was it only yesterday?—there is no change to the withdrawal agreement. Its 597 pages remain unchanged. That is not entirely true, because they have been reduced to a smaller volume. The text, however, is completely unchanged. So too are the 26 pages—I think now 28 pages—of the political declaration.

The result is that the legal risk remains unchanged. As the Attorney-General states in paragraph 19 of his latest opinion:

“The legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise”—


that is, the situation in which no new agreement is reached—

“the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”

I had the opportunity to hear the Attorney-General’s Statement in another place this morning, and I understood him to be reconfirming that position in his answers.

It is also worth restating that—despite rumours to the contrary—there are no changes to the arbitration provisions and no new system of arbitration: it will still be lawyers who make this decision. It also follows that the statement in paragraph 16 of the Attorney-General’s opinion of 13 November 2018 still stands. That statement was as follows:

“It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down. The ordinary meaning of the provisions set out above and considered in their context allows no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling the same objectives. Therefore, despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein”.


I understand that still to be the position and invite the noble and learned Lord to confirm it.

In his Statement, the Attorney-General focused particularly on other available remedies in the event that the European Union can be proved guilty of bad faith in not reaching an agreement. He says—this is important, and the noble and learned Lord repeated these words earlier—that the new documents are,

“not about a situation where, despite the parties properly fulfilling the duties of good faith and their best endeavours, they cannot reach an agreement on a future relationship”.

Again, therefore, I ask the noble and learned Lord to confirm that the Government accept that if, while acting in good faith, both parties cannot reach an agreement, the backstop would endure with no predetermined end date. I underline the phrase “can be proved to be” acting in bad faith, because that would have to be demonstrated—would it not? —and it would be for the United Kingdom, if it was asserting that position, to prove it. Can the noble and learned Lord confirm that? The burden of proof, as we lawyers say, would be on us.

I also question the likelihood that that could be proved. I have made this point before in the House. It would be a very strong thing—a virtually impossible thing—for this arbitral panel to find on proof that senior statesmen and politicians were acting in bad faith, rather than simply being unable to agree on what are important matters for them—for their constituents, as for ours. As a practising lawyer —at least when he is not fulfilling governmental responsibilities—would the noble and learned Lord agree that the prospects of proving that, when the EU negotiators are saying, “No, we did not regard these proposals as being in the interests of the EU”, are vanishingly small? If he were advising a client, he would tell him so now.

In his previous advice, the Attorney-General referred to the difficulties of proof and the egregious nature of the conduct that would be required to establish a breach of those obligations by the EU. These are very strong things to have to prove. I respectfully suggest that, in reaching a view on how much comfort these arrangements give, that must be borne very much in mind.

The Attorney-General says that he believes the risks of an indefinite stay are reduced. He does not—it seems to me—explain in his advice why they are reduced. I understood that, in short, he sees a greater political will to reach an agreement. That is a political judgement. It is of course open to him and to others to take the same or a different view on the political will. I cannot, however, agree that anything in any of the three documents changes the legal reality.

In paragraph 4 of his opinion, the Attorney-General referred to a,

“systematic refusal to take into consideration adverse proposals or interests”.

A systematic, contumacious or deliberate refusal even to consider proposals would, I suppose, be evidence of bad faith—but that is as far as it goes. A sincere disagreement about the terms, however, is not bad faith.

As for the third document, the unilateral statement, it is that and nothing more. It is what the United Kingdom says that it thinks, but that does not make it so. I do not, therefore, share the view that there is anything in these legal documents that shifts the legal risk.

I am loath to go back to the codpiece that I referred to yesterday. However, I said then that I did not really understand how that soubriquet had come into being. From what I have read since, it is apparently code for figleaf. I regret to say that despite the energy and good faith of both the Prime Minister and the Attorney-General—which I respect—these are no more than a figleaf, and Members of the other place are left to make their political judgments on the basis of the Prime Minister’s deal.

[Lord Thomas of Gresford (LD)]

My Lords, I do not propose to repeat the speech I made yesterday, in which I suggested that it was inappropriate for lawyers to determine an issue as important as whether the backstop had run its course. I am very pleased that in the conclusion to his Statement today, the Attorney-General emphasised that matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. As it is a political decision, it is really not right to ask lawyers to determine whether a state is acting in bad faith, as the noble and learned Lord said a moment ago. I commend the Attorney-General for sticking firmly to the opinion that he first gave and not being shifted, despite the enormous pressure I have no doubt he is under.

An aggrieved party under this instrument would have to persuade the arbitrators to prove—as the noble and learned Lord, Lord Goldsmith, said—that the other party had failed the best endeavours test with the objective of applying the backstop indefinitely. Further, he would have to prove that there had been a persistent failure or a systematic refusal to consider the other side’s proposals. Only if the arbitrators found in the aggrieved party’s favour would they be able to use temporary measures to suspend the backstop—and I emphasise the word “temporary”. The other party could cure the problem at will at any time by taking the necessary measures to comply with the ruling.

My first question to the Minister, therefore, is this: what does he envisage to be temporary measures? What does that mean? Clearly, it would not be a permanent unilateral withdrawal from the backstop. What would happen at the Northern Ireland border to the free passage of goods if temporary measures were taken? Would it be a smuggler’s free for all or a clamping down?

The Attorney-General originally advised that it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for a breach of good faith and best endeavours because of the difficulties of proof and the egregious nature of the conduct, which would have to be established. I remind your Lordships that according to the Oxford English Dictionary, the word “egregious”, which the Attorney-General in typical fashion rolled off his tongue, means “shocking”. Is it now then all about timetables? That is all that the instrument appears to lay down. I listened to the Attorney-General talking in the other place about time being of the essence. To every lawyer, that phrase means that if the timetable is not adhered to, the whole agreement is defunct. The United Kingdom negotiators have not shown themselves to be particularly conscious of time over the past two and a half years. Will a breach of the timetable on either side now amount to egregious, shocking conduct, sufficient to trigger the dispute settlement arbitration procedures?

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords for their contributions. Referring to the observations of the noble and learned Lord, Lord Goldsmith, I will perhaps begin where he finished. If the noble and learned Lord was to revisit his study of early Italian Renaissance sculpture, he might be reminded that the fig leaf can cover some very important bits. Therefore, one must bear in mind that the use of analogies is not always entirely helpful.

In paragraph 19 of his opinion, the Attorney-General set out his view that the legal remains unchanged. But that was not the question that was being addressed. The issue that exercised people was one of an extreme nature, which one would, frankly, never anticipate arising where parties have entered into an international treaty in good faith and intend to discharge their obligations under that treaty in good faith. As I observed in a previous debate, if you simply do not trust the person with whom you are contracting or entering into a treaty, there is little point in doing so—you would not proceed in the belief that they would ever finally discharge their obligations. Here, however, we proceed in the confident belief that their obligations will be addressed and met.

It is therefore important that, in the context of the further agreement, the parties have fixed a date of December 2020 by which to use their best endeavours to arrive at an alternative to the backstop. It is in these circumstances that it is considered appropriate, as the Attorney-General observed in paragraph 7 of his opinion, to note that the provisions now represent materially new legal obligations and commitments which mean that unconscionable behaviour on the part of the EU, and failure to fulfil its obligation to seek suitable and alternative practical means of dealing with the backstop, would have to be properly addressed in the context of the arbitration provisions.

It is in that context that I come to address the questions posed by the noble and learned Lord, which touch upon each other. He began by asking how, if there is bad faith by the European Union, we would prove it. There are circumstances in which it would become apparent that the European Union was intent upon seeking to trap the United Kingdom in the backstop, notwithstanding the provision of alternative arrangements. But let us be clear: one does not anticipate or foresee that that would ever occur.

On that point, I note that the backstop has significant drawbacks for the European Union, just as it has significant drawbacks for the United Kingdom. If it were ever to emerge, the backstop would result in Great Britain enjoying the benefits of a customs union and paying nothing for that. The relevant payment in respect of the customs union would come from trade in Northern Ireland, not in Great Britain. Let us remember that there is very little in this that benefits the European Union, let alone the United Kingdom.

If we were, however, to find ourselves in a situation in which there was shocking or egregious conduct on the part of the European Union, the arbitration measure would be available. In finding that there was a breach, the arbitrators would be entitled to grant temporary measures. That would include a temporary suspension of the operation of the relevant backstop provisions with regard to the border.

The noble Lord, Lord Thomas, asked, quite rightly, what would happen at the border. One answer is that we would find ourselves in that situation only where the European Union had not been prepared to engage with coherent, sensible proposals put forward by the United Kingdom to deal with the border and ensure that it could remain entirely open. If a suspension was ordered by the arbitrators, it would then be open to the United Kingdom to implement those proposals unilaterally at the border in order to deal with the issue. If thereafter—in utterly extreme circumstances—the European Union was to persist in refusing to engage with the temporary suspension of the protocol, the arbitrators would eventually come to the conclusion, quite rightly, that the protocol was simply not required; that it was no longer “necessary” because the alternative arrangements during the suspension had clearly worked to the satisfaction of the European Union, which had done nothing in the meantime. Again, I stress that we are talking about the most extreme of circumstances. I do not contemplate that, politically, anyone will go there.

[Lord Goldsmith]

The noble and learned Lord has given us extreme examples such as unconscionable behaviour and all the rest of it, but does he not agree that the most likely circumstance in which we fail to agree is because we fail to agree? We have seen it over a period of time already, and know that it does not have to be unconscionable or as a result of bad faith. In those circumstances, none of these arguments would avail.

[Lord Keen of Elie]

I do not accept the noble and learned Lord’s suggestion that that is the most likely or probable outcome. We have already seen circumstances in which parties have laid out the suitability of alternative arrangements for the border between Northern Ireland and the Republic of Ireland. Work will go on with regard to that. There is going to be a track of work carried out as soon as the withdrawal agreement is concluded in order to bring that to fruition by December 2020. There is therefore no reason to suppose that such a thing is impossible. If we have a situation in which the EU simply refuses and turns its face away from a workable proposal, then there will be an issue of good faith and best endeavours to be addressed and disposed of. But the political reality is different. This is very much a situation in which we are dealing with an extreme. Equally extreme is the idea that somehow, over a period of almost two years, the parties would not be able to conceive of a means of dealing with the border except by means of the backstop.

Brexit: Legal Position of Withdrawal Agreement

Lord Goldsmith Excerpts

Monday 3rd December 2018 Lords Chamber

[Lord Keen of Elie]

I thank the noble Lord for his question but I am not in a position to say that the Attorney-General has or has not given legal advice on any issue to the Cabinet.

[Lord Goldsmith (Lab)]

My Lords, I do not intend to come back on the question of whether or not the Attorney-General’s advice should be disclosed; my views on the undesirability of that in the past are well known. I want to come on to the question of substance, which is important. The Minister has talked about the backstop and how it may be avoided. Could he confirm that the backstop will come in unless there is a concluded agreement? Could he confirm that, as the Statement by the right honourable Attorney-General says, it would continue in force,

“unless and until it was superseded by the intended subsequent agreement”?

That corresponds with the provisions of Article 1.4 of the protocol and indeed of the recital. Does the Minister agree that there are obstacles to avoiding that? He says you can use the “best endeavours” obligation. The right honourable Attorney-General said you can prove that only with “Clear and convincing evidence”. Does he agree with that? Does he also agree that simply finding a note dropped by President Macron saying “I don’t want to do a deal with the UK” will not satisfy that requirement?

Could the Minister please explain how the arbitrators have the power to impose a deal on the EU or the UK? It is one thing to say that someone is in breach of a provision; it is another entirely to impose on us and the EU an agreement that we have not reached. I go back to the words,

“until it was superseded by the intended subsequent agreement”.

I could find nothing in the 500-odd pages saying that the arbitral panel has the power to impose such an agreement. I see nothing that says anything other than that if the dispute is there, it can be passed to the arbitral tribunal. But how does the arbitral tribunal impose that, and why does the protocol state that it remains in force unless and until it is superseded by a subsequent agreement, rather than its saying unless and until it is superseded by a subsequent agreement or a decision of the arbitral tribunal?

[Lord Keen of Elie]

I thank the noble and learned Lord for his observations. His last comment is not the position under the agreement. It is not for the arbitral tribunal per se to simply impose an alternative agreement to the backstop, so let us clear that out of the way.

Let us look at the terms of the Northern Ireland protocol itself. If the backstop comes in, it will continue until superseded by an alternative agreement that the parties consider renders the existing backstop in the protocol no longer necessary. That is perfectly clear. It does not address the situation in which one or other of the parties simply fails to obtemper their legal obligations under the Northern Ireland protocol, including the obligation to use their best endeavours to arrive at a new arrangement in place of the existing backstop. In that event, the matter will ultimately go to the arbitral tribunal. Pursuant to Article 178, it has certain powers. It can impose financial penalties, just as the EU can impose financial penalties on a member that does not obtemper its obligations under EU law. The arbitral panel will have the power to impose financial obligations on parties who are in breach. If they do not then obtemper their obligations, it has the power to allow for the suspension of an obligation under the terms of the protocol.

These are temporary measures that would be taken to ensure that a party ultimately performs its obligations under the treaty. Failing that, there is the issue of Article 60 of the Vienna convention. However, I do not believe that anyone anticipates that we are going to go down that road. It is very clear that, for political reasons, it would not be in the interests of the EU, any more than those of the United Kingdom, to prolong the backstop in the Northern Ireland protocol any more than is absolutely necessary to maintain the integrity of the Good Friday agreement and the open border on the island of Ireland.

Brexit: Attorney-General’s Advice

Lord Goldsmith Excerpts

Thursday 29th November 2018 Lords Chamber

[Lord Keen of Elie]

I am not going to anticipate a Statement that has not yet been made. With regard to the interpretation and application of the withdrawal agreement, this is not the time or the place to indulge in a detailed analysis of its effect. However, the withdrawal agreement is in the public domain, and it is open to anyone and all to take appropriate legal advice if they consider that that is required with regard to the interpretation of that agreement.

[Lord Goldsmith (Lab)]

My Lords, I apologise to the noble and learned Lord for intervening. As he said that he would not anticipate what is to come, I thought that he was going to stop.

Given the references to things that I have said in the past, I thought that I should intervene for a couple of moments. First, I do not agree with or accept the characterisations that have been made in relation to what happened in 2003, but that is for another day. Of course, all the advice given on Iraq was disclosed in the Chilcot inquiry and looked at in great detail. It is important to recognise that. Secondly, I want to press the noble and learned Lord on the point that he has not really dealt with. In 2003, no resolution or humble Address was ever made by the House of Commons to the Government; they could have released whatever they wanted at any time. I am interested to know what the Minister has to say about the effect of the Commons resolution.

[Lord Keen of Elie]

There has been a resolution in the House of Commons. We are aware of its terms and its scope. We will await the Statement from the Attorney-General to see to what extent it is considered by the House of Commons to meet the resolution that was made.

Brexit: Negotiations

Lord Goldsmith Excerpts

Tuesday 20th November 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, tonight is not, of course, a night for any decision, but we have heard in this debate some interesting observations on where we now stand and some very important contributions—including that of the noble Lord, Lord Steel of Aikwood —reminding us of one of the political reasons behind the European Union, in the shadow of the reminiscences that we have had of the First World War. I must very briefly welcome the noble Lord, Lord McCrea. We have heard the robust straight talking already; we look forward to hearing the singing on another occasion. Given the time available, I will not say more about other contributions other than in the course of the few remarks I want to make.

What we have heard is, first, voice after voice saying that a no-deal solution is not one we can accept or that should be accepted. We have heard formidable descriptions of what this would be: a car-crash Brexit; devastatingly damaging; catastrophic—all these remarks have been made during this debate. The noble Baroness, Lady Altmann, may have explained well why it is in fact no longer an option, but in this House at least it seems there is a strong view that a no-deal exit is not acceptable. So what do we have? Do we have a deal? That has been the subject of much discussion tonight.

Plainly, some issues are dealt with in the 585 pages, some of them important ones. But what really matters for the future are the seven pages—it is quite generous to call it seven; it is six and one-third actually—of the political declaration. That is where we find all the areas that will really govern our future relationship with Europe and the rest of the world. What does it consist of? It consists, as some noble Lords have said, of sentences without verbs. The reason why is that it is a list. On the whole it is an index, a list of things that are desirable—many extremely desirable—but they are not yet spelled out and of course they are not yet a binding commitment. So I want to ask the Minister, the noble and learned Lord, Lord Keen of Elie, a couple of questions about that.

When we look at the political declaration, noble Lords can see all the important things it needs to deal with. Energetic though she and her advisers may be, there is no way that the Prime Minister is going to solve all those issues by the end of the weekend. Some important changes may be made and we look forward to seeing what those are—they may cover some of the areas referred to by noble Lords—but there is a huge amount to deal with, including services and investment. To take one small example, the headline promises:

“Appropriate arrangements on professional qualifications”.


That is very important to many people. Appropriate they must be, but what are they going to be? That covers, as some noble Lords have said, many possibilities. On financial services, I read of:

“Commitments to preserving financial stability, market integrity, investor protection and fair competition”.


Those are really important, but how you achieve them—the detail—is what will ultimately matter, and we do not know that at this stage. The critical thing, therefore, is what the deal is going to be.

When the Minister winds up, I want him to consider the extent of the commitment to two things described during this debate as possible mitigators of the lack, as yet, of a concluded, complete and full binding agreement. One is the fact that Article 184 of the withdrawal agreement provides for good faith negotiations to reach a conclusion. However, does he agree that the obligation that,

“The Union and the United Kingdom shall use their best endeavours, in good faith”—


I will qualify that in a moment—

“to negotiate expeditiously the agreements”,

does not amount to anything other than a best-efforts obligation? It is not an obligation to reach an agreement or to guarantee that result. That is well understood in United Kingdom law and European Union law. That is an extraordinarily important difference.

The noble Lord, Lord Kerr—who ought to know—said that what Article 50 required was not a list of things which should be agreed but things which were there as the framework. That has not happened. That is critical. The sequence of this has been completely wrong. The other thing that has not been contradicted in this debate is what my noble friend Lady Hayter said in opening: that this has been, regrettably, a complete mess and that is why we are in the position we are in today. The sequencing that has taken place on the negotiation is one element of it.

The point about the good-faith negotiation is important but it cannot actually result in an agreement if it is not within the wishes of the EU to achieve it. Of course, as noble Lords have said, the extent to which it will have the incentive to do that is reduced in the circumstances in which we are now.

The second potential qualifier is the arbitration provisions. I really would welcome the Minister’s views on this. It might at least save there being a Motion in the other place to get all the legal advice. The arbitration provisions appear to me to be provisions to determine the true meaning or the true effect of those things which have been agreed—and not to fill in gaps where the parties have not been able to agree them. If the Minister can help us with that, it will make a big difference, because it means that if we do not reach agreement on certain things, the arbitration provisions will not provide it. I would welcome his help on those two points.

Where does that all lead us? The thing that struck me most in the resignation article by Jo Johnson was his statement:

“Suspension of disbelief is a necessary ingredient in all storytelling”.


He was saying that about the narrative that the Government had been putting forward. Having got to this stage in this critical and sensitive area, with these things still not having been finally agreed, will the Government please commit to no more storytelling and no more narratives and to giving an honest statement of what the possibilities are and what the result of those possibilities will be, so that whoever has to make the ultimate decision—whether it is Parliament or the people—can do so in the knowledge of all the true facts?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we are not talking about a strike in public services. Whether the figure is 38% or not, it represents a majority and that is where we are.

The noble Baroness, Lady Bull, raised a series of questions about citizens’ rights. I quite understand her concern, particularly in the context of educational institutions. We are bringing forward an immigration Bill. Once that has been brought forward and laid, we will be in a position to address comment and criticism with regard to its terms.

[Lord Goldsmith]

When will it be brought forward?

[Lord Keen of Elie]

I understand that it will be in the new year.

Worboys Case and the Parole Board

Lord Goldsmith Excerpts

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

With respect, I have not suggested that the Government consider themselves as having no responsibility in respect of the matters disclosed in the Worboys judicial review.

[Lord Goldsmith (Lab)]

My Lords, I want to raise one question about the funding for this appeal. Quite rightly, noble Lords have commented that it is inappropriate that the victims should have had to crowdfund in order to challenge this decision. From the Statement that the noble and learned Lord made, I understand that the Secretary of State for Justice himself had some impediment to bringing a claim—I am not talking about the substance of his claim here. Why did the Attorney-General not consider it to be part of his job to challenge the decision? After all, it is the Attorney-General who challenges inappropriate sentences and, to some extent, has responsibility for looking after victims. Would that not have reduced the problems, such that the Government, through what is in many ways the independent office of the Attorney-General, could have stepped in to bring this matter before the courts?

[Lord Keen of Elie]

The noble and learned Lord makes an interesting suggestion. It is not a point which I recollect being addressed at the time, and the matter was looked at from the perspective of the Secretary of State for Justice. As the noble and learned Lord implicitly acknowledges, the Secretary of State was in something of a difficult position, given that the Parole Board—albeit an independent entity—has a link to the Ministry of Justice. But I take on board the noble and learned Lord’s observation.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

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

Moved by

[Lord Goldsmith]

358: Clause 19, page 15, line 21, at end insert—
“( ) If the United Kingdom agrees transitional arrangements with the European Union, a Minister of the Crown may not appoint a day on which section 6 is to come in force unless this day follows the expiration of those transitional arrangements.”

[Lord Goldsmith (Lab)]

My Lords, the purpose of this amendment is to prevent Section 6 coming into force until after the expiration of any transitional arrangements agreed with the Union. Clause 6, somewhat innocently and perhaps misleadingly named “Interpretation of retained EU law”, does more than simply offer canons of interpretation for retained EU law. Its apparent purpose is to bring to an end in a number of respects the role of the European court, the CJEU. Once Section 6 is in force no court or tribunal would be bound by any principles laid down or any decision made on or after exit day by the CJEU. Moreover, it would bring to an end the ability to refer matters to the European Court. As the Committee will be well aware, one of the ways in which the uniformity of Union law is preserved is through the ability of national courts to refer questions of interpretation and so forth to the European Court for decision. That means that our courts can get authoritative rulings on European law from the top European court to help our courts make their decisions. Moreover, of course, while we are members of the Union we are bound by Union law as interpreted and laid down by the European Court.

Of course, because certain law will be retained as EU law after exit, if the Bill goes through, the shutters cannot and should not come down completely even after exit. Subsections (3) to (7) of Clause 6 provide how the courts and tribunals are to interpret retained EU law after exit. As one would expect, even after exit day retained EU law will need to be interpreted in the light of decisions of the CJEU on those very provisions, although at that time our most senior courts—the Supreme Court in England and Wales and the High Court of Justiciary in Scotland, in its appellate role—would have the power to depart from those decisions. It is not, however, that aspect of continuing arrangements that this amendment primarily concerns. This amendment is concerned to ensure that, so long as we remain bound to follow EU law under transitional arrangements, the judicial arrangements, including the role of the CJEU, will continue to apply. That makes sense because, until the transitional arrangements have come to an end, EU law will continue to apply.

I have looked, as many noble Lords will have done, at the colourful draft agreement for withdrawal published recently. I say “colourful” because we can see the green parts that show what has been agreed at negotiator level and the yellow parts showing what has been agreed as policy objectives. As for the proposals for judicial procedures, none of that is green or indeed yellow; it is white at the moment so, as I understand it—the noble and learned Lord or the noble Baroness, whoever is replying, will explain—the current position is that we simply have, in this text, the negotiating position that the European Union wants to put forward. That is dealt with in Title X and Articles 82 to 92, particularly Articles 82 and 83. As I understand them—again, this could be confirmed or otherwise—the current proposal of the European Union is as follows.

First, the European Court will continue to have jurisdiction in any proceedings brought before it by or against the United Kingdom before the end of the transition period. So in one case its jurisdiction would remain, if that proposal were ultimately accepted.

Secondly, the European court would continue to have jurisdiction to give references or preliminary rulings from our courts referred to it before the end of the transition period. In any case, if the current draft of Article 85 from the European Union is accepted, the judgments and orders of the Court of Justice handed down before the end of the transition period, as well as those handed down in proceedings by or against the United Kingdom, will have,

“binding force in their entirety on and in the United Kingdom”.

I believe, although it would be helpful to have confirmation, that the European Union intends that, if this negotiating position is ultimately accepted, rulings and preliminary references brought before the end of the transition period will also be binding.

--- Later in debate ---

[Lord Keen of Elie]

I am not sure I agree with the term “red lines”; it is not one that I am inclined to use. I am never quite sure what they are. Our position is that during an implementation period, if and when finally agreed, we will accept that there is a role for the European Court of Justice. Indeed, it is outlined in the EU’s own proposals for the agreement at Articles 82 through to 85. As the noble and learned Lord indicated, that is not yet the subject of final confirmation between the two parties but it is what is anticipated.

On a related point, during that period, I agree with the noble and learned Lord, Lord Hope, that as we cease to be a member state we will cease to have the right to have a judge in the Court of Justice of the European Union. That must follow. However, we will have the right to make interventions in cases that pertain to the United Kingdom.

[Lord Goldsmith]

My Lords, there have been moments during the 11 Committee days that we have had so far on this Bill when I felt a little sorry for the noble and learned Lord opposite for the positions that he was being expected to argue by those behind him and in other places, but never more sorry than I am today. This is the most absurd situation. We have offered him an amendment and I am grateful for the description given by the noble Lord, Lord Kerr of Kinlochard, as delicate. It does not presume even that there are transitional arrangements. It simply says that, if there are transitional arrangements, this is what will happen. I cannot understand why it is not accepted. I had hoped on this 11th final day of Committee that we would have a breakthrough.

[Baroness Hayter of Kentish Town]

The 11th hour of the 11th day.

[Lord Goldsmith]

The 11th hour of the 11th day, as my noble friend Lady Hayter says. If we had had a breakthrough, we would have been able to say we had finished Committee with a concession—not much of a concession, it would have to be said, because it is so obvious that this ought to happen, but at least it would have been something that we could build on as we move towards Report where we hope we will have a degree of constructive engagement.

This really does not make sense at all. We all know, and the noble and learned Lord knows—indeed, he accepted it—that there will be a role for the European Court of Justice after the magic exit day, whatever day we end up with. If there is not, this amendment does not operate. It is very straightforward and simple: to suggest otherwise is cloud-cuckoo-land or Red Queen land.

The noble and learned Lord’s final recourse is to legal certainty. We all accept the importance of legal certainty, and that that is what is behind the Bill. However, there is complete legal certainty if this Bill, when it becomes an Act, says, “If something happens, this provision does not come into effect until the end of that period”. I will not quote Latin again, but we know there are principles which say that those things are certain which can be made certain, and it will be certain because we will know whether or not there is such an arrangement.

--- Later in debate ---

[Lord Beith (LD)]

My Lords, I am glad to be associated with the noble Lord, Lord Pannick, in supporting this amendment to seek some clarity. I will simply add two further points, having said that this distinctly lacks clarity at the moment.

First, I draw attention to paragraph 3, which says:

“Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction”.


A little gloss on that from the Minister would be helpful. The second thing that needs clarifying is the impact on the devolution aspects of the Bill. The Government’s Explanatory Notes say that,

“in relation to the devolved administrations these pre-existing powers”—

that is, the powers that can be used under the clause we are discussing—

“are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence”.

I imagine that the noble and learned Lord, Lord Hope, pricked up his ears at that phrase, because it goes to the heart of the argument we have been having about the impact of the Bill on devolution and the idea that powers will be released to the devolved Administrations only once the UK Government are satisfied with the way they will deal with the framework provisions. The appearance of the phrase,

“until the relevant subject matters are released from the interim limit on their competence”,

in the Explanatory Notes is quite worrying. The provisions are of course there because some of the provisions here relate to existing devolved powers. The devolved Administrations must have the capacity to take this kind of action if the UK Government have the capacity to do so. However, it is subject to this rather extraordinary restriction: the Government hold on to the powers until they are satisfied that they can be released. For the benefit of clarity, I hope that the Minister can help us.

[Lord Goldsmith]

My Lords, I support the amendment. There is not much to add to what the noble Lord, Lord Pannick, said about what the amendment does and why it is necessary, nor to add to the questions he asked or to those then added by the noble Lord, Lord Beith, which in particular picked up issues with regard to the devolved Administrations.

We know that a major theme in your Lordships’ House, rightly, has been how powers are to be exercised, recognising that there may be circumstances in which they have to be exercised. Notwithstanding that, on the whole this Committee has rightly taken the view—or we hope that we will see it take the view, certainly from the interventions and contributions that have been made throughout the Committee—that this is a matter where proper parliamentary scrutiny is required. There may well be a role for certain delegated legislation, but please let us not add to it with still yet another way in which things can be done which avoid that full parliamentary scrutiny.

I hope that the Minister, when he responds, will be able to say something reassuring, both answering the questions posed by the noble Lords, Lord Pannick and Lord Beith, and saying why we need not be concerned and that the Government will content themselves with relying on those delegated powers that will be specific to the Bill, once this Committee and the other place have determined just what those delegated powers should be.

[Lord Keen of Elie]

I am obliged to noble Lords. I begin by making two observations. These amendments are linked closely to the issue we have already debated in Committee of the status of retained EU law and how we deal with it in the context of its status. As has been indicated previously in Committee, the Government have been listening and considering that, and we intend to come back to the House on the matter before Report. I mention that because it is a relevant backdrop to what we are considering at this stage.

On the points raised by the noble Lord, Lord Beith, essentially, the powers in paragraph 3 of Schedule 8 are, first of all, designed to remove what I might term the shadow of European law from what will be domestic legislation. However, more particularly, the noble Lord raised a point about the devolution issues and quoted from the Explanatory Notes. I understand that the section of the Explanatory Notes that he refers to addresses Clause 11 prior to its recent amendment. I appreciate that we then withdrew that amendment, but the Explanatory Notes should be read in that context. Essentially, therefore, we have moved on because of the decision to flip Clause 11—I think that was the term used—so I ask the noble Lord to look at the proposed amendment to Clause 11 to understand the context in which we now want to deal with this point.

--- Later in debate ---

[Lord Keen of Elie]

Of course, our constitutional position has altered over the last few years—say, the last 500—and, at the end of the day, we see ourselves as, essentially, an amending House. I understand the noble Lord’s point but, in that context, we also understand the precedence of the other place with regard to the final passage of legislation. Therefore, our primary tasks in this context are scrutiny and comment.

The Government have always said that this Bill is not the place for radical policy change. Essentially, what we want to do at this stage is preserve the existing domestic powers to amend legislation pursuant to paragraph 3 of Schedule 8, in order that we can address issues with regard to retained EU law. But the manner in which those powers will ultimately be deployed will depend on the outcome of our consideration of the question of what status we confer on retained EU law. Given that that is an ongoing issue, I invite the noble Lord at this stage to withdraw his amendment. He may, of course, choose to return to it once he has seen our proposals with regard to retained EU law, but it appears to me that the two issues are inextricably linked.

[Lord Goldsmith]

Before the noble Lord announces the fate of his amendment, I have a question for the Minister. He said several times that there is a connection here with what will happen to EU retained law and what status it will have. We have had full debates on that, as he rightly says. We have heard from the noble Baroness, Lady Bowles; we have heard from the Constitution Committee; we have heard a rather different proposal from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who is not in his place at the moment. My question is simply: when will we know what the Government’s decision is? I hope that they will not stick—because they cannot stick—to the idea that it will be simply for Ministers to decide as we go along the status of a particular piece of retained law. When will we know the Government’s position? That might enable us to advance not only on that point but on points such as the one being debated at the moment. Can the Minister give us an answer as to dates?

[Lord Keen of Elie]

I cannot give the noble and learned Lord an answer as to dates, but clearly we are concerned to ensure that any proposals we have to make are in place in time for consideration by the whole House before Report.

--- Later in debate ---

[Lord Lisvane (CB)]

My Lords, I can hear the strains of the “Farewell” Symphony as we prepare to tackle the penultimate amendment to be debated in Committee, and how appropriate it is that the very final amendment should be in the name of the noble Lord, Lord Adonis.

Amendment 365 is in my name and the names of my noble and learned friend Lord Judge, my noble friend Lord Pannick and the noble Baroness, Lady Hayter of Kentish Town, and it is very sharply focused. The Committee has already considered the issue of tertiary legislation, with Amendments 110 and 135 as vehicles. Those amendments combined the issue of the principle of tertiary legislation with that of sunsetting. Amendment 365 is about only sunsetting, so I need not trouble the Minister to revisit the general defence of tertiary legislation, which he made at cols. 1473 and 1474 at an unearthly hour on Monday 12 March, although it was then what the rest of the world knew as Tuesday 13 March.

On that occasion, the Minister also made a defence of the exemption of tertiary legislation from sunsetting. He said:

“Where sub-delegated or transferred legislative powers are crucial to the functioning of a regime, it would not be appropriate”—


how often that word “appropriate” recurs—

“for those powers to be subject to a sunset”.—[Official Report, 12/3/18; col. 1475.]

If one accepts the principle of bodies such as the Prudential Regulation Authority and the Financial Conduct Authority exercising tertiary powers in their role as continuing guardians of a regime—and the Minister made a very good case for that in his speech on that occasion—it also makes sense for them to continue to do so after two years have elapsed from exit day. Indeed, I feel that I am now starting to make the Minister’s speech for him. However, there remains a serious point, because if bodies responsible for the functioning of a regime are to continue to exercise their powers without a sunset, it is crucial that those powers are tightly drawn in the first instance, as there will be no opportunity for parliamentary scrutiny of the subsequent exercise of the powers that have been delegated to those bodies.

Therefore, perhaps the most helpful thing the Minister could do in replying to this debate would be to give your Lordships a clear assurance that the tertiary powers will be carefully circumscribed, and that when affirmative instruments delegating those powers come before Parliament—because the actual delegation will be subject to the affirmative process—they do not simply prescribe some general subject area in which the body is to operate and which is to be its responsibility, but are rather more specific and indeed constraining. I beg to move.

[Lord Goldsmith]

My Lords, I support this amendment and am grateful to the noble Lord, Lord Lisvane, for bringing it forward. I am also grateful to him for reminding the Committee that, when we sit past midnight, it remains the same day. I wonder what the noble Lord’s nervous maiden aunts would have made of this never-ending night. The amendment raises an important point and is yet another example of how we have to be careful and circumspect in the use of delegated powers. It is now really for the Minister to answer that question and to see whether he is prepared to give us the reassurance that the noble Lord, Lord Lisvane, asked for.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

I thank the noble Lord, Lord Lisvane, for introducing this amendment, which stands also in the names of the noble Lord, Lord Pannick, the noble and learned Lord, Lord Judge, and the noble Baroness, Lady Hayter. I am glad to have the opportunity to address it.

First, I reassure noble Lords that the strength of feeling around the exercise of delegated powers by those not immediately accountable to Parliament has been heard, as I said the other evening. The Government are looking very closely at the issue of transparency before Parliament, and we will of course hold that at the forefront of our minds as we consider our position ahead of Report.

At the heart of this Bill is the repeal of the European Communities Act, including Section 2(2) of that Act. As noble Lords on all sides of the Committee know, that provision has been the vires used for many statutory instruments made by many Governments in recent years. This Bill does not replace that power. Although there are several broad powers in the Bill, with some approaching the breadth of Section 2(2) of the ECA, they are, unlike that power, time limited. The Bill is not an assault on Parliament but, rather, the means by which this Parliament will take back control to itself.

--- Later in debate ---

[Lord Faulks (Con)]

My Lords, this is a piece of political opportunism. The context of the 2011 Act, as those who were in the House well remember, was that there was very strong opposition in your Lordships’ House to there being referendums as the result of relatively minor transfers of powers and competences. That was rejected as being unnecessary and being a sop to the Eurosceptic wing. However, there were, incidentally, quite a few occasions on which it was conceded that all was far from perfect in the European Union, which is not something we have heard much about in the debates during the course of this Committee stage. To say that we should rely on a Bill that was most unpopular with many Liberal Democrats and a good number in the Labour Party in order to hold another referendum is really not what this is about.

[Lord Goldsmith]

My Lords, it must be unprecedented to have such a long and well-attended debate on what is almost the final repeal in the last schedule to a Bill. Given that this is the last debate that we will have in the Committee stage, perhaps I may, as the person who happens to be responding from these Benches, pay tribute to the quality of the contributions that have been made by all sides of the Chamber, including from my noble friend Lord Adonis. I have to say that anyone outside who says that we have been spoiling or somehow wrecking the Bill would not be able to maintain that charge in the light of the clarity and detail of the scrutiny that we have given the Bill.

As to the amendment, I admire the ingenuity which brings it forward. It is clear that the purpose behind it ultimately would be to trigger the referendum-requiring provisions set out in the 2011 Act. There are two ways of looking at that. One is to consider the political nature of the 2011 Act and compare that with what is happening at this stage, where one might well say, if I dare, that it was simply a staging post to the position we find ourselves in now. Many of us find the position of exit an unhappy one, but it would be a staging post to that and it has now passed. There is a legal question which is quite different: whether in fact the conditions in the 2011 Act are triggered. From what the noble Baroness, Lady Ludford, has said, there are legal proceedings which may challenge that, and I do not think it is right for me to venture an opinion from this Dispatch Box as to whether those are right or not.

However, I will venture a political opinion from my position, which is this. We are well aware that there are some in this House, in particular on the Liberal Democrat Benches—we fully respect their views, even if we may not share them—who would like to see a further referendum, and many in the country would like to see that. If that is going to happen, one might say that the way for it to come about is through a direct vote on whether a referendum should be taking place rather than what might seem to be a side wind. And that is my problem with the proposed amendment, even though it is ingenious. I have reason to believe—indeed, I suspect, from what the noble Baroness, Lady Ludford, said—that this House will have an opportunity on Report to express its view directly, full-throatedly and openly about a further referendum. The House will give its view, but I am not convinced about doing it through this route.

[Lord Adonis]

Can my noble and learned friend give his view on whether it is appropriate that the 2011 Act should be repealed in advance of the repeal of the European Communities Act 1972?

[Lord Goldsmith]

It is perfectly appropriate, although I do not like the word “appropriate”, as we all know. Perhaps the answer is that it is not necessary, but it may be appropriate.

I fully respect what the noble Lord is doing. It is not easy to say this but, politically, the 2011 Act was a staging post on the route—as it turns out—to full Brexit, even though some people still hope that we will not go that far, and it has therefore served its purpose. I am not making a legal analysis of whether the conditions in the Act apply because I can see arguments why they may and why they may not; I am explaining why, if there is a suggestion that this House will vote for a referendum, it would be better to do it on an amendment or a Motion that directly raises that question. It can then be fully debated and we can all have our say. For those reasons, I very much regret to tell my noble friend that I cannot support his amendment.

[Lord Callanan]

My Lords, after 115 hours of Committee debate, as observed by the noble Lord, Lord Lisvane, it is somehow appropriate—that word again—that the last and 372nd amendment should be tabled by the noble Lord, Lord Adonis. He referred to our deep and special partnership; I think that is probably going a bit far, but to mark the occasion, I thought I would get him a gift to celebrate his perseverance. The Adonis nut bar is available in all good health shops. He is welcome to collect it later.

In responding to Amendment 372, I want to be very clear about what the European Union Act 2011 does. The Act contains a recent mechanism for two principal goals—first, to provide that where Ministers participate in certain types of decisions, those decisions are specifically approved in the UK. This normally happens via an Act of Parliament. The Act passed last year to approve the decisions—which allowed the participation of Albania and Serbia in the work of the EU Agency for Fundamental Rights and the conclusion of an agreement on competition law between the EU and Canada—is an example of this. Secondly, the Act also provides that where there is a revision to the fundamental treaties of the EU, akin to the treaties of Lisbon or Maastricht, there should be an Act of Parliament—and, in certain circumstances, a referendum in the UK—before the UK Government could approve those changes.

I invite noble Lords to cast their minds back, as some Members have done, to 2011 and the context in which this Act was passed. Sadly, I was not a Member of your Lordships’ House then; I was with the noble Baroness, Lady Ludford—not directly; we were Members—in the European Parliament. The Act was drafted in the context of its time in response to new EU methods of approving treaty changes and calls for more public and parliamentary involvement in such decisions. Its purpose was to regulate decision-making on the UK’s relationship to the EU treaties in the context of the UK as a member state. At that point, the idea of holding a referendum on the UK’s membership of the EU was far from the Government’s mind, let alone undertaking the most complex negotiation in history to recast that relationship with the UK outside the EU treaties.

Of course, everything has changed since then. We are leaving the EU. The 2011 Act is redundant. It is appropriate to repeal redundant legislation. It may even be necessary to repeal the 2011 Act. Amendment 372 would prevent the Bill from repealing the 2011 Act. From previous statements made by the noble Lord, Lord Adonis, I understand that he intends to use the Act in an attempt to secure a second referendum—no surprise there. I will not revisit the positions that we have already covered extensively in debate about the merits or otherwise of holding a further referendum as part of the process of our exit from the EU; no doubt the Liberal Democrats will enable us to return to this matter on Report. We have covered that at length in this Committee; suffice it to say that the Government think, first, that a second referendum is not appropriate and, secondly, that it is most certainly not for this Bill to provide for one.

--- Later in debate ---

[Lord Goldsmith]

To clarify, I did not say that. I deliberately did not express a view as to whether that argument would legally succeed precisely because I understand it is the subject of legal proceedings. I would not want for a moment to pre-empt them.

[Lord Adonis]

My Lords, those legal proceedings will by definition cease if the 2011 Act is repealed soon after the enactment of the Bill.

The second point that was not addressed, which is a matter of some substance, is that, on an issue of this gravity, surely it is not too much for the people to expect of Parliament that the House of Commons itself should expressly vote on the repeal of the 2011 Act. Because of the guillotine Motion in the House of Commons and the limited opportunities there were for debate in the Commons the matter was never debated, let alone voted on. That is one of our responsibilities.

My final point on the final day and the final amendment on the Bill, with such a magnificent attendance by noble Lords on the Conservative Benches, is to address the final point made by my noble and learned friend about taking a decision expressly on the issue of a referendum. I agree that it is a matter we should expressly take a decision on. The point of the 2011 Act is that it is existing statute law and should be repealed expressly only by the House of Commons.

It is clear that the dominating issue that will preoccupy us over the next six to nine months is whether the people themselves should have a say on the terms of the withdrawal treaty. What is already lurking behind the debate—it is, I am afraid, an issue of intense debate in my own party, but I suspect it will spread to other parties—is whether the people should be allowed that final say. It is clear that many people, I suspect including my noble and learned friend and maybe my right honourable friend the leader of the Opposition, at the moment do not think that a referendum is the right course. What is happening is we are having a charade of big debates about what are essentially second-order issues in the House while the consensus is rolling on that, maybe to avoid too big a division of public opinion, we should allow Brexit simply to roll on next year.

That will be the dominating issue of British politics in the next nine months: whether Brexit is a done deal, whether Parliament will debate, with the option of rejection, the Prime Minister’s withdrawal treaty and whether—in considering what is the biggest and most significant issue that has faced Parliament in this generation—before we take the final plunge into the unknown and engage in Brexit, we will give the people a say on the terms of withdrawal. That is a very big and weighty issue to raise at the very last moment of the debate in Committee, but in two weeks’ time we will regroup and start Report. We can rehearse all these arguments again. On that note, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Wednesday 21st March 2018 Lords Chamber

It is a weird world—you wait for several weeks with an EU withdrawal Bill and all your amendments come at once. That seems to be my misfortune this morning. If the noble and learned Lord can give us some reassurances on the sort of information that is likely to be supplied with statutory instruments, I am minded not to debate Clause 17 stand part. In a sense, it is a follow-on, because in that debate I would hope to hear that the Minister would want to consider ensuring that when information is provided as background for statutory instruments, the appropriateness of that statutory instrument is very clearly spelled out. I am looking to hear from the Minister some other words of comfort on that issue. In those circumstances, I will not call for a debate on Clause 17 stand part.

[Lord Goldsmith (Lab)]

My Lords, we have had Latin from the noble and learned Lord, Lord Wallace of Tankerness, and French from my noble friend Lord Bassam. Later in the day, somebody else might be able to say something in Welsh or Irish, but I cannot do either.

This group of amendments relates to topics that we have already discussed in Committee and no doubt we will do so again: the extent of delegated powers and the extent of protection of rights. When the noble Lord, Lord Low, moved his amendment very cogently, he emphasised points with which I absolutely agree. There is concern that rights should not be removed as a result of what is taking place in the Bill. We have also looked at this topic before in Committee and no doubt we will do so again. I have referred on several occasions to the promise by the Prime Minister that rights after exit will be the same as the day before.

These amendments concern a different aspect— the explanatory statements which are proposed to be used for statutory instruments. The technique of using statements to be laid before the House is a valuable one. I previously referred the Committee to the benefits of the requirements under Section 19 of the Human Rights Act for certificates on the face of the Bill that the provisions are, in the opinion of the Minister, compliant with the Convention rights. The significance of such a statement is that, first, it puts a personal obligation on the Minister to be satisfied that the Bill does what is being certified. What is more, it is a requirement that those conditions are met and not simply that there is an argument that they might be met. I am glad to see the noble and learned Lord, Lord Irvine of Lairg, in his place. I have referred before to the memorandum that resulted in there being a requirement on Ministers when they come to certify under the Human Rights Act to do so on the basis of legal advice provided by government legal officers, or the law officers themselves, and also to be satisfied, at least more probably than not—I paraphrase and hope I have it right—that the requirement will be met in the case of a particular provision. That makes it not an idle requirement that the Minister should so certify but a very valuable requirement.

The idea of the statements is an important one. We have several questions here in relation to them. The first, raised by Amendment 242A, is that the requirement for such explanatory statements should apply to all cases where statutory instruments are being made under the Act and not simply those which are identified. I look forward to hearing from the Minister why the Government do not think, having taken the view that it is necessary, appropriate and right to have such statements in relation to certain statutory instruments, that it should apply to all statutory instruments made under this Act. Bearing in mind that it is not a requirement that stops the instrument being made, such a statement tells this House and the other place what the Government think they are doing—whether they think they are reducing protections or not—and puts both Houses in a position to take the steps that they think appropriate to deal with that in the light of what the Government say. Therefore, I look forward to hearing why the requirement for explanatory statements does not apply to all instruments under the Act.

The second amendment is the important amendment moved by the noble Lord, Lord Low, which asks why it is not right that the words,

“is satisfied that it does not remove or diminish any protection provided by or under the equalities legislation”

should be inserted in place of the much weaker words in the Bill providing that the Minister should have due regard to the need to eliminate discrimination, et cetera. As he rightly pointed out, this, in any case, deals with only one aspect of equalities legislation. I would hope that Ministers always had due regard to that, whatever the circumstances and whether or not the Bill stated it. Something more is needed: a requirement that the Minister is satisfied that this does not in fact reduce the protections currently provided. That amendment should be supported and we look forward to what the Minister has to say.

The third amendment, Amendment 246, has been spoken to by my noble friend Lord Bassam of Brighton. It would be valuable for Parliament—whichever House —to be told what the intention of any proposed modification is and whether it is intended to reduce or change EU law. That is a valuable proposal, though it goes in a slightly different direction to the other amendments, which are concerned with rather more concrete statements as to whether or not rights are being retained.

The noble Lord, Lord Low of Dalston, rightly referred to one aspect of the Bill that has been mentioned in Committee before. While the Government recognise that there needs to be special protection for rights protected by our Human Rights Act, which is drawn from the European Convention on Human Rights, it does not do the same for rights that come from other areas, in particular EU law. Again, we need to understand from the Government why they do not think the same sort of protection is necessary in relation to rights derived from EU retained law. One example is data protection. Nothing could be more pertinent at the moment, as we read today’s newspapers. We see that data is a critical area that needs protection. Very important protection comes from the EU at the moment. This will come into law, but do the Government take the view that it is subject to much easier removal, or should it not be subject to the same degree of protection as rights under the European Convention on Human Rights?

For those reasons, I look forward to the Minister’s response and I hope that it will promise change. I follow my noble friend Lord Bassam in hoping to see an amendment brought forward on Report by the Government to deal with these important points.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government are committed to transparency before Parliament for the statutory instruments that will come under the Bill. We hope the statements we have already committed to in Schedule 7 will assist Parliament and deliver the due level of scrutiny required for secondary legislation. We have been listening to the debate and, for Report, we are looking closely at where these could be expanded to address some of the concerns raised in Committee.

Amendment 242A to Schedule 7, proposed by the noble Lord, Lord Low, would extend the requirement for Ministers making secondary legislation under the Bill to make statements in respect of all the powers in the Bill. With respect, these statements are designed to apply only to the key powers under the Bill, and for good reason. The other powers in the Bill are tightly limited to specific purposes, such as allowing for challenges to the validity of EU law or making provision which is consequential on the Bill. These other powers will not be making the sorts of changes to which these statements are applicable and are designed to be applicable. We will debate these other powers in more detail in due course but I hope that that will reassure the noble Lord as to why we have proceeded in this way on the matter of statements.

The noble Lord, Lord Low, also tabled Amendment 245A, which would adjust the equalities statement in Schedule 7. Let me assure everyone, including the noble Lord, Lord Cashman, that I understand and sympathise with the motivation behind this amendment, which I know is shared by many others on all sides of the Committee. The amendment looks very like the Government’s existing political commitment. However, the language of a political commitment does not necessarily lend itself to the very different context of the equalities statute book.

In the equalities area, it is not always straightforward to determine what is deemed to be “protection”—the term used in the amendment—for one group of people when it may exist in tension or potentially conflict with the protection of other groups. To take a simple example, looking at the operation of domestic violence refuges or rape counselling centres taking account of the provisions in the Equality Act that relate to women, how does that also relate to gender recognition? These are quite complex areas that we have to bear in mind. That is precisely why, for example, the provisions of the Equality Act 2010 are so detailed and granular rather than creating high-level rights that would potentially raise more questions than they answer. I note that the 2010 Act dwarfs the mere 68 pages of the Bill.

In these circumstances, we are concerned about the limits of the statement that would be required. I hear what the noble Lord, Lord Low, and the noble and learned Lord, Lord Wallace, said about the scope of the public sector equality duty and the notion that perhaps only a part of that is expressed in Schedule 7. We will take that away for consideration before Report.

Amendment 246, tabled by the noble Lord, Lord Bassam, raises an interesting point regarding how further clarity can be provided on the effect of regulations made under Clauses 7, 8 and 9. As he observed, the point was mentioned in the recent report by the Constitution Committee. The Government want the Bill to provide certainty and clarity, and I have listened to his observations on this with some interest.

As we discussed on day five of Committee, Clause 6(3) provides that questions on the validity, meaning or effect of unmodified retained EU law are to be interpreted in accordance with retained EU case law. Clause 6(6) goes on to provide that modified retained EU law may still be interpreted under Clause 6(3) if that is consistent with the intention of the modifications. It is this point that the noble Lord’s amendment strikes at. It seeks to impose an obligation on Ministers by adding to the explanatory statement requirements in Schedule 7 to explain the intention of any modification, and how that modified law should be interpreted under Clause 6.

I understand the aim, but we have to be cautious before adding to the explanatory statement requirements in Schedule 7. Requiring a statement for each modification as to its intent and instructions to the courts on whether Clause 6(3) should apply to them could complicate matters. In that context, I merely observe that it is important to bear in mind that courts themselves will already have the text of the modification itself together with a statement explaining the reasons for it, the law before exit day that is relevant, and any effect of the modification on retained EU law. It may be that this could complicate matters.

I have listened carefully to the points raised on that matter and I can confirm that we will reflect on what I appreciate is a constructive suggestion in order to bring further clarity to these parts of the Bill. I hope that with that reassurance, the noble Lord may not have to engage in sequential groups of amendments in Committee this morning.

--- Later in debate ---

[Lord Wigley (PC)]

My Lords, I had not intended to intervene in this debate—the devolution aspects will come later today—but if one looks at paragraph 17 of Schedule 7, on page 51, and the interplay that it has with Clause 17, on page 14, I read it that the powers exercisable by the Welsh or Scottish Ministers under Schedule 7 are subject to the orders that they can make but that, if they do not make them, they can be over- ruled by the provisions of Clause 17—paragraph 17 on page 51 gives a Minister the right to do that. Am I interpreting this rightly?

[Lord Goldsmith]

My Lords, the provision indeed looks a bit innocuous when one first looks at it. The noble Lord, Lord Newby, is absolutely right. But the more one examines it, as has been demonstrated by speeches from noble Lords in this short debate so far, it is much more than that.

Two ways have been proposed for dealing with this clause. One had been to follow the golden thread of “appropriate” and “necessity” that the noble Lord, Lord Lisvane, referred to. Amendments 253 and 254, which have already been debated, touched on that and we will have to come back to those important proposals in due course. But this amendment goes even further in proposing that the power should be removed. As it stands, the idea that the Minister can, by regulation, make any change that he or she considers appropriate under this Act is extraordinarily wide. I therefore share the hope of other noble Lords that we hear from the Minister—having seen, as I am sure he has, how wide this provision is—that something needs to be done: probably something more radical than simply changing the words “considers” and “appropriate”.

We will listen to what he says. However, the powerful speeches by the noble Lords, Lord Pannick, Lord Cormack and Lord Wigley, and by my noble friends Lord Liddle and Lord Bassam, demonstrate that there is a real risk—as the noble Lord, Lord Cormack, put it—that this is another example of the accretion of power to the Executive at the expense of Parliament. It is our duty to put the brakes on when that sort of provision is put before us. Again, I look forward to what the noble and learned Lord will say; I am sure he has seen the point—in all languages. We need a clear commitment, not just to comfort, but to a change that will satisfy this House that it is not being asked to sanction untrammelled power to the Executive in such an important area.

[Lord Keen of Elie]

My Lords, the Government are always listening. The Government are concerned to ensure that we have appropriate powers to deal with the consequences of this Bill: to bring the statute book into line with the consequences of the repeals brought about—or intended to be brought about—by it.

The context is that the European Communities Act has been a central piece of legislation for the past 46 years and is spread throughout our statute book. So much current legislation stems from the ECA. Repealing the 1972 Act, and the other key EU-related Acts listed in Schedule 9, will leave many loose ends that need to be addressed.

The purpose of the consequential power is to deal with the consequences of the widespread changes to the statute book that may arise from the provisions in the Bill itself. I stress “in the Bill itself” in the light of the suggestion by my noble friend Lord Cormack that we are dealing here with “untrammelled powers”. In that context, I understand the expressions of concern about particular provisions—which can sometimes be read out of context—but I stress again that these consequential powers can be used only in consequence of the provisions of the Bill itself, rather than in consequence of our withdrawal from the EU more generally. I see the noble and learned Lord, Lord Goldsmith, frowning, but if he feels that a different interpretation can be placed on this provision I would welcome discussion on it, because that is clearly its intention. If, in his view, it goes further, I would be happy to listen to him on that.

[Lord Goldsmith]

In the light of his invitation, I ask the noble and learned Lord to consider this question. I take his point that the words are “in consequence of the Act”, but the Act includes the repeal of the European Communities Act and all that it has brought with it. He may not want to reply to this question now and I am very happy to have further discussions with him, as they are always useful and constructive, but does he not see that the repeal of the Act and the instruments under it may indeed give rise to very wide opportunities if all that is required is for the Minister to consider it “appropriate” to do something in consequence of that?

--- Later in debate ---

[Lord Keen of Elie]

I am not sure that I am in a position to answer that question. Nevertheless, when we legislate, we must also legislate as to what a future Administration would do with that legislation. I quite accept that point.

[Lord Goldsmith]

The Minister’s self-effacing remark draws attention to the other aspect of this clause. It was helpful when he said—and I hope that we will see some concrete results from this—that the Government will look at the word “appropriate” and, I hope, change it to “necessary”, but that is only part of the problem in this and other clauses. There are two elements. One is that the Minister “considers” and the second is what it is that the Minister considers. In this clause, it is “the Minister considers appropriate”. Many of the amendments before the Committee want to see that it is changed to “is necessary”—an objective rather than a subjective test. Sharing, as I do, views as to the good will and intentions of the Minister who sits here at the moment, we need to have, as he says himself, more conviction about what might happen in the future. So will the Minister also consider in those circumstances not just changing the word “appropriate” to “necessary”, but removing the subjective element so that we are satisfied that there has to be a clear objective statement before the Minister can actually exercise these powers?

[Lord Keen of Elie]

My Lords, I am not going to draft at the Dispatch Box and I will not give undertakings about any part of this clause at this stage. I am saying that we will look at it in the context of the observations that have been made in Committee, and we will do that responsibly.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, that one way or another it must be for Parliament to decide the essential ground rules that should apply in the future categorisation of retained EU law, certainly under Clauses 3 and 4, although perhaps not under Clause 2 as it is already domestic law. As I made plain some weeks ago—it seems like months—in an earlier debate, I do not, however, subscribe to the view of the Constitution Committee that all retained EU law should be designated as primary legislation. We discussed all this at the time. If what I may call in shorthand Professor Paul Craig’s suggested solution to this problem is adopted by following the EU’s own categorisation, under both the pre-Lisbon and post-Lisbon arrangements, somebody will have to apply that ground rule to this mass of 10,000, 20,000 or 30,000 instruments—however many they may be.

I suggested in an earlier debate, because this is what Paul Craig had said, that in fact four competent EU lawyers could carry out that whole process in a matter of three days. I may have those figures slightly wrong, but that is about it. But if that is left to be done after the passage of this legislation, some regulating power will have to be available to government to give effect to that process. The ground rules settled its application for regulation. I hold no particular brief for this being done under Clause 17(1); it may be that the better course would be to introduce the ground rules—as I say, Parliament’s specification of how basically the process is to be completed—within the legislation, and have a regulation-making power attached to that for the sole purpose of applying the ground rules. But I would not wish to leave unchallenged the Constitution Committee’s suggestion that the whole shooting match should be primary legislation.

[Lord Goldsmith]

My Lords, to some extent this is a continuation not just of the previous debate today but of previous debates that we have had on earlier days in Committee. That leads me to two observations, before I come to specifics on the amendment. One is on the very pertinent observation of the noble Lord, Lord Wallace of Saltaire, that if we do not advance at all before we get to Report we will have just as much time spent on Report as in Committee. Therefore, we very much hope that the Government respond to his suggestion or injunction to the Minister that we have some greater clarity on what the Government are going to do as a result of the consideration that they have been having for the last few days, when they have had time to consider some of these points. Indeed, I hope that it is not only the noble and learned Lord who is working on this—there are a lot more people in government who should and could be working on it. That is just one observation that demonstrates how much work there is to do, and how we need to move forward, hoping of course to do that in co-operation with the Government.

Secondly, I suppose people outside listening to this debate will wonder what on earth we are talking about. They expect that this Bill is about in or out and when and what the terms are, and the customs union. Those are important issues, too, but this debate illustrates how important some of the provisions in this Bill are. The question of whether something is to be regarded as a piece of primary legislation is fundamentally important; it has consequences for who legislates and how easy it is to amend that legislation, as well as for its effect in relation to other statutes. I draw this as a general view that has been expressed around the House, that it cannot be left simply for a Minister to decide. In previous debates, we have heard how many Ministers that could be. I made the observation—no one has yet contradicted it, although maybe it should be contradicted—that when you say that a Minister does something, under the Karl Turner principle that means that a civil servant can do it. I have the greatest of admiration for civil servants, but that would multiply the number very considerably. If we are talking about important constitutional provisions, about protection of rights and all the other things that the Bill is concerned with, it is not appropriate that decisions on who makes that decision should be left in this way.

I thank the noble Lord, Lord Pannick, for drawing attention to the fact, as others have too, that one consequence of this particular provision that my noble friend Lord Bassam of Brighton has dealt with touches on the question of who decides whether something is primary or secondary. The noble and learned Lord, Lord Mackay of Clashfern, made a very important observation, and so did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Today is not the day to decide which should be primary; what we are talking about is whether it should be simply for a Minister or for his officials to determine whether a particular piece of law should be treated as primary or secondary legislation. That is what the amendment raises, and it is important that we should have clarity on it, I hope before we get to Report.

The summary that is given in paragraph 69 of the Constitution Committee’s report, already referred to by the noble Lord, Lord Pannick, puts it in clear terms, including the last sentence that, as it stands:

“This is a recipe for confusion and legal uncertainty”.


We cannot afford this Bill, when it has completed its passage through this House and the other place, to leave the country in a state of confusion and legal uncertainty.