All 14 Lord Keen of Elie contributions to the European Union (Withdrawal) Act 2018

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Mon 26th Feb 2018
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Committee: 2nd sitting (Hansard - continued): House of Lords
Wed 28th Feb 2018
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Committee: 3rd sitting (Hansard): House of Lords
Wed 28th Feb 2018
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Committee: 3rd sitting (Hansard - continued): House of Lords
Mon 5th Mar 2018
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Committee: 4th sitting (Hansard): House of Lords
Mon 5th Mar 2018
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Committee: 4th sitting (Hansard - continued): House of Lords
Wed 7th Mar 2018
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Committee: 5th sitting (Hansard): House of Lords
Wed 21st Mar 2018
European Union (Withdrawal) Bill
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Committee: 9th sitting (Hansard): House of Lords
Wed 21st Mar 2018
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Committee: 9th sitting (Hansard - continued): House of Lords
Wed 28th Mar 2018
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Committee: 11th sitting (Hansard - continued): House of Lords
Wed 18th Apr 2018
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Report: 1st sitting: House of Lords
Mon 23rd Apr 2018
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Report: 2nd sitting (Hansard): House of Lords
Wed 2nd May 2018
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Report: 5th sitting (Hansard): House of Lords
Tue 8th May 2018
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Report: 6th sitting (Hansard): House of Lords
Wed 16th May 2018
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3rd reading (Hansard): House of Lords

European Union (Withdrawal) Bill Debate

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European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018

(6 years, 1 month ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-II(a) Amendments for Committee, supplementary to the second marshalled list (PDF, 68KB) - (23 Feb 2018)
Lord Blencathra Portrait Lord Blencathra
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The Magna Carta was imposed on King John by the Barons, as I understand it—the Barons being Members of this noble House. The House did not exist in that form, but it was imposed by the Lords and the Barons. The House of Commons passed the Bill of Rights 350 years ago and imposed it on the sovereign, guaranteeing our rights to free elections, no taxes without parliamentary approval and free speech. The Bill of Rights passed 350 years ago by this Parliament formed the basis of the United States Bill of Rights and Bills of rights of other countries around the world.

Then just 70 years ago, we used our unique experience to write the European Convention on Human Rights—largely written by British lawyers. We wrote that for countries which had no history of our fundamental freedoms and had suffered the evils and degradations of National Socialism. What I am saying is that the worst indictment I make of the EU is that it seems to have destroyed the belief among parliamentarians, noble Lords and Members of Parliament that we are capable of governing ourselves and writing our own law.

There is nothing of any value in the Charter of Fundamental Rights which is not already covered in UK law or the European convention. If we find some great new right in the future and decide that freedom of thought must become a law, are we incapable in this House, in the other place and as British parliamentarians of drafting that? Are we so enfeebled and incapable that we cannot do it? If the Barons could do it 800 years ago, Members of Parliament 350 years ago and the British Government and parliamentarians did it for Europe 70 years ago, are we so incapable that we cannot do it now?

The people of this country voted to bring back control of our laws because they believed that Parliament was capable of making better laws than the EU. They believed that we are better at deciding on our essential rights than an ECJ judge from Bulgaria who has a law degree in Marxist-Leninist law—I have checked on that, and he has got a degree from Sofia on Marxist-Leninist law.

I happen to agree with the British people. I see the incredible wealth of talent in this House, with noble and learned Lords and Law Lords, and I trust our courts. We do not need nor want this charter. Let us wear once gain the mantle of our predecessors in the Lords and Commons, who gave us every freedom that has been worth fighting and dying for for the last few hundred years. We need the courage of the electorate, who trusted us to make our own laws once again. We should not let them down.

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Baroness Deech Portrait Baroness Deech
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I will make a point that has not been made before. The charter has never been scrutinised by this House. If it had been, we would not have this lack of clarity. I have more confidence in the ability of our Supreme Court to protect us than I have in the ECJ. Bearing in mind what the noble Lord, Lord Cashman, said, what a failure the charter has been across Europe. The Roma are being persecuted, migrants are not getting proper treatment, the leaders of Catalonia are being locked up and extremist, right-wing parties are on the march. Freedom House is marking down European countries; they are sliding away from human rights. I am not proud of the charter; it has not worked in Europe. We are much better off with something home-grown and administered by our Supreme Court.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, if I appear faint in my defence of the Bill it is due to a lack of food rather than a lack of enthusiasm. I am grateful for the opportunity to respond to this important debate and set out the Government’s position. I will start by making it clear that we are listening carefully to the debates on this issue, and will continue to do so.

The Government agree that protecting our rights and liberties as we leave the EU is of critical importance and it is only right that every detail of our approach is scrutinised. This has been a wide-ranging debate about human rights after exit, but it is worth remembering that the amendments before us relate specifically to the charter and the question of what role, if any, it should have in domestic law when we are no longer a member of the EU.

I maintain that the approach in the Bill to the charter as a document is absolutely right, and that the Bill in this respect is in no need of improvement. However, as many noble Lords have pointed out, that approach cannot be separated from the Bill’s approach to the general principles of EU law, including fundamental rights. In response to the strength of feeling conveyed not just in this House but in the other place, the Government are looking again at these issues. These are highly technical issues in some respects but they are undoubtedly important, so we will look further at whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. Indeed, my noble friend Lord Lamont referred to an observation made by the Secretary of State himself that, if there were specific examples of rights which were not otherwise covered, we would examine them to ensure that the rights were not lost. However, that is not the case. On the specific question of whether the charter should be kept, our view remains that not incorporating the charter into UK law should not in itself affect the substantive rights from which individuals already benefit in the United Kingdom. This is because the charter was never the source of those rights.

The noble and learned Lord, Lord Goldsmith, anticipated that he might be reminded of his previous remarks on the matter, and I see no reason to disappoint him. In 2008, when this House debated the then European Union (Amendment) Bill, he was absolutely clear that,

“the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions … the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national”,—[Official Report, 9/6/08; cols. 426-27.]

laws.

The noble and learned Lord observed that he had nevertheless then encountered the incorporation of the charter into the Lisbon treaty in 2009. Perhaps that was a game changer. I remind him of his evidence to the European Scrutiny Committee in 2014. At that time he referred back to his previous statements and publications with regard to the charter and went on to say that, as he had there explained, the fundamental point was to provide a clear and accessible statement of existing rights and therefore constraints on the power of the EU to legislate.

As the noble and learned Lord’s previous remarks help to make clear, the charter is only one of the elements of the UK’s existing human rights architecture. It reaffirms rights and principles that exist elsewhere in the EU acquis, irrespective of the charter, and the Bill sets out how those rights and principles will continue to be protected in UK law after exit.

The noble and learned Lord referred to a number of issues, such as the case of Benkharbouche in 2017 in the Supreme Court. In that case the court found that there was a breach of Article 6 of the convention but it also referred to Article 47 of the charter in the context not of rights but of remedies. One has to bear in mind the distinction between rights and remedies.

The noble and learned Lord posed three questions in the context of previous observations about the charter. First, he talked about there being no loss of substantial protection. It is inevitable that leaving the EU will result in changes to the current arrangements, but certainly we do not accept that this in itself will result in a loss of substantive rights.

Secondly, he referred to the procedural protections that will be excluded. When we leave the EU, a person can still rely on sources that are reaffirmed in the charter. I emphasise “reaffirmed in the charter”, as he himself observed in 2008 and 2014. Procedurally there may be differences but we do not consider that that can be a basis for incorporating the charter into domestic law. Indeed, we absolutely stand by what has been said by the Prime Minister: it is not necessary to retain the charter to ensure that rights are protected.

The noble and learned Lord also referred to the body of the charter, beginning with Article 1, and suggested that these rights were contained only in the charter. I simply observe that on 5 December last year the Government published a very detailed paper setting out, as it were, a comparison of the rights in the charter and where they can be found elsewhere—in the convention, in the principles of EU law and in our own common law. The noble and learned Lord referred to Article 1, which concerns the right to human dignity. I remind him that there is a long series of case law both from the ECJ, as it then was, and from the European Court of Human Rights going back to 1995 in which, for example, the convention court emphasised that the very essence of the convention is respect for human dignity and human freedom. That has been repeated in a whole series of cases since then. These are well-established rights and they were well established when they were brought together into the charter.

I want to reassure noble Lords that substantive rights protected in the charter are, and will continue to be, protected elsewhere in UK law after we leave the EU, most notably in convention rights, in retained EU law, in the common law and via specific statutory protections such as those in our own equalities legislation. I have already mentioned that the Government published a detailed analysis providing guidance about how substantive rights found in the charter would be reflected in domestic law after exit.

Reference has been made to various legal opinions and that of Jason Coppel QC, who has had a number of name checks this evening. I can only implore noble Lords to look at the very detailed analysis the Government have produced. I also note that some of the references to Mr Coppel’s opinion involve references to his concern that Ministers might change rights, for example, or that the procedures will be affected. However, that is not to say that the fundamental rights underlying the charter are not found elsewhere.

Baroness Hamwee Portrait Baroness Hamwee (LD)
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My Lords, the noble and learned Lord quite rightly draws our attention to the distinction between rights and remedies, but he will agree that rights are not helpful unless there are remedies. If we were scrutinising the charter and the source of its rights to establish whether we were satisfied that the rights and remedies could still apply, we might, for instance, have noted that the sources of Article 1 mentioned in the analysis would not confer an enforceable right on individuals after exit day. That is the JCHR’s analysis of the analysis.

I hope that the Minister can answer the question asked, in particular, by the noble Lords, Lord Pannick and Lord Kerslake, about why we have combined the two debates—one about the charter, its rights and wrongs and whether it is good or bad, and the other about the mechanisms. We have heard so often from the Government Front Bench that this Bill is about mechanisms. Why are the Government not using the mechanism they have themselves designed to give them the opportunity, and to give the Committee the opportunity, to consider the substance calmly after the chimes of midnight?

Lord Keen of Elie Portrait Lord Keen of Elie
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Quite simply because, as I indicated earlier to the Committee, the rights underpinning the charter exist elsewhere than in the charter and it is not necessary to incorporate the charter into domestic law in order to find those fundamental rights in our domestic law after we leave the EU.

Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett
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I am sorry to interrupt, but the analysis by the Joint Committee on Human Rights to which the noble Baroness referred, which is an analysis of the Government’s analysis, identified a number of rights that are not there other than in the charter. Does the noble and learned Lord reject the JCHR’s analysis?

Lord Keen of Elie Portrait Lord Keen of Elie
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We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost.

Clause 5(5) makes it clear that, notwithstanding the non-incorporation of the charter, retained EU law will continue to be interpreted by UK courts in a way that is consistent with the underlying rights. I hope that addresses to some extent the issue raised by the noble and learned Lord, Lord Wallace, in that context. Interpretive provisions will retain a means by which we can look at these rights in the proper context.

With regard to those who have expressed concerns about this Bill resulting in a loss of substantive rights, I repeat—as the noble and learned Lord, Lord Goldsmith, has done, at least prior to his recent Pauline conversion—that it is not necessary to retain the charter to retain those fundamental rights. If we see that there is a potential loss of such fundamental rights, we will address that, and that is what we have indicated.

Lord Pannick Portrait Lord Pannick
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I put it to the noble and learned Lord that there is no other area of retained EU law where the Government have carried out this exercise or said that we do not need to read across a particular provision because it is already in domestic law. Why are they making an exception of the charter?

Lord Keen of Elie Portrait Lord Keen of Elie
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Because this is the only case in which we have identified that situation. There is no other reason for proceeding in this way except for that.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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If, as the noble and learned Lord said on numerous occasions in his reply, the rights established in the charter are already there in our domestic law, what is lost by keeping the charter? If those rights are already there, the Government cannot be worried about anything if they retain the charter.

Lord Keen of Elie Portrait Lord Keen of Elie
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I must compliment the noble and learned Lord on his second sight. As I was about to say, the next argument put to us is that if we say that the charter is not adding anything, what is the problem with keeping it? I hope that is a fair summary of the noble and learned Lord’s intervention. With respect, this argument simply fails to take account of how the charter applies at present. The charter and the rights that it reaffirmed have a limited application. They apply to the EU institutions all of the time, but apply only to member states acting within the scope of EU law. We will no longer be a member state and so we will be no longer be acting within the scope of EU law. Simply retaining the charter would not reflect the realities of leaving the EU. It cannot be right that a document called the Charter of Fundamental Rights of the European Union could continue to be used as the justification to bring cases that would lead ultimately to the striking down of UK primary legislation after we leave the EU. Outside our membership of the EU, it is simply not appropriate to retain the charter.

There are also practical questions to consider. It would be no simple matter to say that we are keeping the charter. The amendments in this group all attempt, in various ways, to solve the riddle of how an instrument inherently linked to and constrained by our membership of the EU could apply purely domestically. They each highlight the complexity involved in such an exercise.

In Amendment 13A, the noble and learned Lord, Lord Goldsmith, requires the Government to lay a report on how the charter will continue to apply to retained EU law after we leave the EU. However, his other amendments are far from clear on precisely how he intends the charter to have effect domestically after exit. They would remove the exclusion of the charter provided for in Clause 5, presumably with the intention that it would now form part of retained EU law. I note that one of his amendments would excise the definition of what the charter is from the Bill, despite going on to say that this undefined, unclear thing will continue to have effect in relation to retained EU law under Clauses 2, 3 and 4. What would our courts make of that? Many articles of the charter set out principles, not rights, which can be relied on directly by individuals. How would these have effect after exit? Eight articles of the charter constitute rights intrinsically linked to EU citizenship—for example, the right to vote in an EU parliamentary election. Of course, they claw at the air—we appreciate that—but they do nothing.

Let us pause again on the fact that the charter applies to member states only when acting within the scope of EU law. Presumably, if retained under the Bill, the charter would then apply only when we were acting within the scope of retained EU law, which I believe is the elaboration that the noble and learned Lord made in response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Over time, our domestic law will evolve and new laws will be made by this sovereign Parliament and the devolved legislatures that will start to replace and supersede this category of retained EU law. We would be retaining the charter, in whatever capacity the noble and learned Lord intends, only for an ever-diminishing proportion of our law. This further risks incorporating complexity and confusion into our domestic statute book.

We should not overstate the accessibility of the current rights regime, which relies on citizens knowing—

Lord Beith Portrait Lord Beith (LD)
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The noble and learned Lord is right in that assertion, but it does not follow that retained European law should not be read across in the form of the charter as well as its other features on exit day. Lots of things will change over time. Parliament will no doubt amend retained European law so that it ceases to be retained European law, but the Bill is about legal continuity and what the situation is on exit day. For this purpose, surely the Minister should accept what is being proposed.

Lord Keen of Elie Portrait Lord Keen of Elie
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I entirely agree with the noble Lord as to what this Bill is about. With regard to the charter, the point is that it does not bring anything over on its own. We already have these rights and obligations, as established by the principles of EU law, convention law and the common law.

As to a concern that something is omitted at the end of the day, as I indicated, we would address that to ensure that all rights are brought across. However, with great respect to the noble Lord, Lord Cashman, I do not believe that you can never have too many belts and braces. If you have too many belts and braces, eventually you cannot stand up. It is therefore important that we approach this issue with a degree of proportionality, if I may use a European term.

Following on from the point I made earlier, retaining the charter for what will become a fluid and changing category of law risks legislatively binding us to a document that would bring the illusion of clarity in the short term but serve only to undermine it in the longer term. Indeed, the other amendments in this group raise similar issues to those put forward by the noble and learned Lord, Lord Goldsmith.

My noble friend Lord Hailsham has tabled amendments that seek to build on the amendments put forward by the noble and learned Lord, Lord Goldsmith. They seek to assign the status of primary legislation to the European Charter of Fundamental Rights. For reasons that we will go into in a later group, the Government believe that the question of assigning status to retained EU law is complex and should be approached with caution. I hope that we can come back to this question when we have concluded our debate on the approach to rights protection and to status more generally. I will not seek to take up time on that issue at this stage.

I suspect that the amendment tabled by the noble Lord, Lord Wigley, would also add to the confusion. Seeking to afford charter rights the same level of protection as convention rights under the Human Rights Act 1998 is fraught with difficulty. Charter rights do not correspond exactly to ECHR rights and apply in different ways. The charter also contains non-justiciable principles as well as rights, and it is unclear what status these would have in domestic law under his amendment. Moreover, it does not deal with how explanations to the charter articles should be treated or how certain sections of the Human Rights Act would apply to charter rights. I appreciate that we are in Committee and that the noble Lord is entitled to say that he will look more carefully at the form of the amendment and perhaps elaborate upon it in due course, but there are fundamental difficulties with the approach he is attempting to take in simply trying to incorporate the charter when, as indeed the noble and learned Lord, Lord Goldsmith, himself observed, the expression of rights in the charter does not coincide precisely with the expression of rights in the convention.

I would like to emphasise again that we remain committed to listening to this House and indeed to working constructively to ensure that we have a functioning statute book which maximises legal certainty. I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that. I wish to reassure noble Lords on that point.

Lord Adonis Portrait Lord Adonis
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My Lords, can the noble and learned Lord give us any indication of when he thinks that that exercise will be completed?

Lord Keen of Elie Portrait Lord Keen of Elie
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The potential answer is no, and the note says that my time is up. Nevertheless, and be that as it may, we will endeavour to address these issues as soon as we can. Clearly it will require us not only to consider the position we have adopted already in the document published in December last year but to take into consideration the concerns expressed by other lawyers and in this Committee in the course of the debate. We will look at those and we will want to address them at the next stage of the Bill; of that, I am confident.

At this stage I appreciate that there are some questions which I have not directly answered in the course of my response and it may be difficult to do so in the time remaining. Perhaps I may say that I endorse entirely the observations of the noble Baroness, Lady Deech, and of the noble and learned Lords, Lord Hope and Lord Brown of Eaton-Under-Heywood, with regard to the potential difficulties of simply drawing the charter over into domestic law. I am not going to elaborate on the consequences of doing that, but they can be summarised as confusion, uncertainty and difficulty, and ultimately could prove to be counterproductive. In these circumstances, I invite the noble and learned Lord to consider withdrawing his amendment.

Lord Goldsmith Portrait Lord Goldsmith
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My Lords, I am very grateful to all noble Lords and noble Baronesses who have taken part in the debate. It has been wide-ranging, as we anticipated it would be. I am grateful to the noble and learned Lord for his remarks. I shall obviously not spend long on what I say now, given the hour. As we approached midnight, I was looking around the corner to see whether a pumpkin would arrive with horses. I was not sure whether it would be for me or for the noble and learned Lord opposite.

European Union (Withdrawal) Bill Debate

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European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Lord Beecham Portrait Lord Beecham (Lab)
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My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

The Constitution Committee points out that Clause 2 is not needed to ensure that most categories of domestic legislation—which in practice will remain in force—will continue to apply. It concludes that,

“clause 2 appears to be significantly broader than it needs to be”.

The Constitution Committee affirms that it is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as retained EU law and be subject to the powers of the amendment referred to in Clause 7.

Does the Minister accept this? If not, on what basis does he take that stance? The provision appears to be a way of allowing the Government to amend legislation by the mechanism of secondary legislation. With all the concerns around the excessive use of such procedures that have frequently been expressed by committees of the House and by Members in the Chamber, it would be reassuring if the noble and learned Lord could make it clear that that is not the Government’s intention in respect of this Bill.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I am grateful for the contributions from Members of the House with regard to this issue. We are extremely grateful for the extensive work done by the Constitution Committee with regard to the Bill, as set out in the report, and for the consideration that members of the committee have given to the provisions of the Bill and some of the difficult issues that arise in transposing EU-based legislation into domestic law, because it represents something of a challenge in a number of respects.

I shall begin by referring to a matter that does not arise out of this group, or did not until the noble Lord, Lord Adonis, raised it, because it may help if I address his point about whether retained EU law is primary or secondary legislation. It is neither in the Bill. There are provisions in paragraph 19 of Schedule 8 with regard to the Human Rights Act, which is a very particular case, where it will be treated as primary legislation. There is the Constitution Committee’s recommendation that it should all be treated as primary legislation. I shall not go into detail at this stage because we will address this later, but I want to reassure the noble Lord about where we are.

That recommendation raises enormous difficulties because there are aspects of EU-derived legislation that, for example, involve the enumeration of the contents of a particular dye or chemical, and the idea that we could amend that only by way of primary legislation raises issues of its own. Nevertheless, it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others. For those who have an interest in this issue, I commend for consideration, at least, the recent observations of Professor Paul Craig of St John’s College, Oxford, in a blog on the UK Constitutional Law Association site dated 26 February—only a few days ago—in which, supplementary to an earlier note that he made, he proposes a categorisation of EU-derived legislation. I cannot say that it is one that we entirely agree with, but it is certainly one that we are looking at because there is more than one route to the resolution of this issue. We are looking at that and, for noble Lords who are interested in that point, it may be worth considering.

Lord Adonis Portrait Lord Adonis
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For those of us who are uninitiated into this blog, what would that mean?

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Lord Keen of Elie Portrait Lord Keen of Elie
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I am not sure I understand the question.

Lord Adonis Portrait Lord Adonis
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What would the new status of legislation that the noble and learned Lord has just mentioned be?

Lord Keen of Elie Portrait Lord Keen of Elie
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Professor Craig addresses a potential categorisation of EU-derived legislation by reference to its origins within EU law, so there is pre-Lisbon treaty and post-Lisbon treaty analysis based on the articles of the pre-Lisbon provisions and of TFEU post Lisbon in 2009. I shall not elaborate on it at this stage as it does not arise in the context of this group. With respect to the noble Lord, I simply want to reassure him that we understand that there is a debate about how we should categorise EU-derived legislation.

The second point I shall mention at the outset is the reference to the principle of supremacy. That turns on Clause 5(2), which ensures that the principle of supremacy—it currently has effect through the ECA—will continue to apply but only for the purpose of resolving conflicts which arise between EU law which is converted by the Bill into domestic law and pre-exit domestic law.

Again, we have to be clear what the purpose of that is. I acknowledge in passing that the Constitution Committee proposed a different way of addressing Clause 5, which on one view might be considered neat, in so far as it involves applying the principle of supremacy without using the word “supremacy”. We will come on to debate that in due course, as the noble Lord, Lord Pannick, observed, and I will not take time up with that at this stage.

I turn to Amendment 15. Clause 2 has been drawn broadly deliberately. As has been noted, it will preserve any domestic regulations made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the ECA 1972. But it also includes within its ambit any other domestic primary or secondary legislation which implements, or enables the implementation of, EU obligations and any related domestic legislation. In response to the inquiry from the noble Lord, Lord Pannick, I make the point that enactments often contain provisions derived from EU legislation—we have to remember that what we are referring to in Clause 2 is EU-derived domestic legislation. It is those parts of Acts such as the Equality Act or the Health and Safety at Work etc. Act that are EU derived which are to be brought within the ambit of retained EU law. It is necessary to read two elements: EU-derived domestic legislation—those parts of legislation that come from the EU—and retained EU law. They are linked.

Baroness Taylor of Bolton Portrait Baroness Taylor of Bolton
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I think I am following what the Minister is saying, but a moment ago he used the phrase “legislation which … enables” implementation. How much of what is “enabling” will be caught in this?

Lord Keen of Elie Portrait Lord Keen of Elie
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It is only that part of the legislation which is derived from the EU which is then brought in and forms part of retained EU law. As a hypothetical example, let us suppose that there are 20 clauses in some piece of health and safety at work legislation, of which 10 are derived from EU legislation. That forms part of EU-derived legislation for the purposes of this Bill, and will come into retained EU law. But the other parts are not EU-derived legislation and will not form part of EU retained law.

Baroness Taylor of Bolton Portrait Baroness Taylor of Bolton
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I accept that, but the Minister is assuming that legislation is always very neatly compartmentalised in a way which would allow that. My fear is that there will be enabling parts of legislation that could be caught up because some subsection could be EU related.

Baroness Ludford Portrait Baroness Ludford (LD)
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Could I just follow on from that by expressing a related concern? We know what the Government’s attitude is to the Charter of Fundamental Rights and we know that the Bill provides that there is no right of action on the basis of general principles of EU law. I am thinking aloud here, but the concern might be that even with only a strict and narrow interpretation of which bits of, say, the Equality Act are EU derived and therefore subject to all the consequences, including Clause 6, we might miss some of the context in which those narrow provisions should be interpreted if we were to remain in the EU and fully under the jurisdiction of the court.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am not sure I agree with that proposition. But of course, at the end of the day, pursuant to Clause 7, it will be necessary to bring forward regulations which address amendments that are required in regards to retained EU law. At that point of course, those regulations will be the subject of scrutiny to ensure that they are limited to those aspects which are EU-derived law and therefore EU retained law. I do not believe that that is necessarily a problem, but I hear what the noble Baroness has said. We will of course take into consideration any difficulties that could arise in that context.

I wish to add one further point that I meant to make at the outset in response to the noble Lord, Lord Adonis. He referred to me as the Advocate-General. I am not appearing here as a law officer, and nothing I say should be construed as law officer advice. I am appearing here as a Minister in respect of the Bill. I would not want there to be any misunderstanding in the light of his reference.

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock (Lab)
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I am really interested in what the noble and learned Lord has just said. Could he explain what the difference is if he says something as a law officer or as a Minister? What import does that have? What difference does it make in the context of this House and in the legal context?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble Lord. I would never say anything in this House as a law officer. It is my role to give advice to the Government in my role as a law officer, but I do not speak in this Chamber in that role. I just wanted to make that clear. The other difference can be found in the list of ministerial salaries.

Clause 2 is not broadly drawn for the reason that all this legislation needs saving—a point made by the noble Lord, Lord Pannick, with reference to Clause 14(6). It is broadly drawn for two important reasons. First, any deficiencies that might arise within this domestic legislation upon our withdrawal can be corrected by the Bill powers under Clause 7. I appreciate that there are noble Lords who will want to address the scope of those powers under Clause 7 when we come to it, but that is the purpose of drawing Clause 2 in this way. During the period in which we have been an EU member state, we have brought into our domestic law a great deal of EU law, and not just expressed as EU-derived law in the form of the implementation of directives or the direct effect of regulations. We have already had reference to the scope of, for example, the Equalities Act; there is also the health and safety at work legislation. These are areas in which we know we find EU-derived legislation. It is therefore important that we bring all that together in order that it can be subject to the regulatory processes in Clause 7, subject of course to the debate that will take place with regard to the scope of the powers in that clause.

The second, rather more important, reason for treating all this legislation as part of retained EU law—I emphasise the connection between EU-derived legislation and what is defined as “retained EU law” for the purposes of the Bill—is that we have to ensure that retained EU law will continue to be interpreted consistently by our courts under Clause 6 of the Bill. This, I apprehend, is why the Bingham Centre, for example, said, while addressing the question of the scope of Clause 2, “If you’re going to narrow the scope, then you’re going to have to amend other parts of the Bill, in particular Clause 6”. That might be a different road to the same goal. All I would say at this stage is that the road we would take is to address this in the context of Clause 2 and the scope of that clause. In a sense, if Clause 2 were narrower, the powers under Clause 7 would be much broader. If we did not bring all of this into the definition of EU-derived legislation but wanted to be able to operate by way of regulations pursuant to Clause 7, there would be virtually no boundaries for the Clause 7 powers, whereas they are circumscribed by the definition that is brought into Clause 2 in the present form.

In my respectful submission, it would be odd if we were to take these categories out of Clause 2 and therefore find ourselves in a situation in which the construction of that law now differed from what it would have been while it remained to be interpreted by reference to the canons of construction that presently apply while we are a member of the EU. It is important that it should be part of retained EU law in order that we have consistency of interpretation. I do not take issue with the suggestion that an alternative route might be to narrow Clause 2 and then completely amend Clause 6, but that is simply not the route that the Government are taking here. I have sought to explain why we are taking this particular route at this time.

I hope that I have reassured noble Lords that Clause 2 is wide in its scope, but for a legitimate purpose. As I said, we will come in due course to address the question of whether and to what extent Clause 7 should complement those provisions with regard to retained EU law. In those circumstances, and emphasising again that we are listening to various considerations about how Clause 2 is formulated, I hope that noble Lords will see fit not to press their amendments. I am obliged.

Lord Brown of Eaton-under-Heywood Portrait Lord Brown of Eaton-under-Heywood (CB)
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I seek clarification from the noble and learned Lord. As I understand it, the words “so far as”, are intended to give Clause 2 limited range. Is this a useful touchstone, in so far as without the provisions we would have failed to implement our obligations under EU law? As I understand it, paragraphs (b), (c) and (d) address aspects of our domestic legislation that are designed to give effect, as they had to, to EU law, but only in so far as they are achieving that objective does Clause 2 have any application. Is that right?

Lord Keen of Elie Portrait Lord Keen of Elie
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That is indeed my reading. The noble Baroness alluded to this earlier in her contribution. That is why I sought to emphasise the term “EU-derived” domestic legislation. It is the derivation of that aspect of a particular Act which is to be brought within the ambit of retained EU law for these purposes.

Lord Pannick Portrait Lord Pannick
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I thank all noble Lords who have contributed to what has been a valuable debate, including the noble and learned Lord, Lord Keen, in whatever capacity he was speaking to the House. The noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Mackay, emphasised the need for legal certainty not just in this clause but throughout the Bill, even though that harms the interests of the legal profession. I should have declared my interest as a barrister who may benefit from legal uncertainty. A number of barristers are present in Committee: the noble Lords, Lord Faulks, Lord Carlile and Lord Thomas of Gresford. There may be others, all of us no doubt thinking that this is the reverse of Thomas Erskine’s comment when he was asked how he had the courage to stand up in the court of Lord Mansfield. He replied that he thought of his children pulling at his robe and begging him, “Now, father, is the time to get us bread”.

The noble and learned Lord, Lord Keen, said that Clause 2 applies only to those sections of the Equality Act, for example, which were enacted for a specified EU purpose or have a relevant EU law connection. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave an explanation of that, and the noble and learned Lord, Lord Mackay of Clashfern, agreed with that approach. That is very helpful in limiting the scope of Clause 2. However, it raises a problem, to which the noble Baroness, Lady Taylor, alluded. If Clause 2 applies only in relation to those parts of the statute which were enacted for a relevant EU purpose, there is still a problem of legal certainty, because there will be disputes as to which parts of the Equality Act—or other legislation—satisfy those criteria. I must say that the criteria in Clause 2 are far from clear. They operate by reference to the purpose of the legislation or whether the legislation relates to EU material. So there may still be a problem here.

I have two suggestions for the noble and learned Lord. First, if as he said, and I entirely accept what he said, Clause 2 is intended to apply only to those parts of the enactment—the Equality Act, or whichever Act—that are linked to EU law or have an EU purpose, the Government might wish to bring forward an amendment to Clause 2 on Report to make that clear on the face of the Bill. The second suggestion is that the noble and learned Lord might wish to consider whether any further clarity can be provided as to how the courts are supposed to apply this section-by-section approach and identify the purpose of the relevant section or whether it relates to EU law.

I noted the very helpful comments of the noble and learned Lord, Lord Keen, on the status of retained EU law and on the supremacy of retained EU law. As he said, we will come to those matters next week, and there are amendments addressing them. I associate myself with the comments of the noble and learned Lord on the valuable contributions by Professor Paul Craig of the University of Oxford.

This has been a helpful debate in illuminating the Government’s intention. I will reflect, and I am sure the Constitution Committee will want to reflect, on what the Minister has said and on the other contributions. I beg leave to withdraw the amendment.

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Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock
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My Lords, I am really grateful to the noble and learned Lord, Lord Wallace of Tankerness, himself a former Advocate-General, for moving this amendment. In the light of what he said, all I can say is that I agree with his every word.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble and learned Lord and the noble Lord not only for explaining the amendment but for their endorsement of it.

In responding to Amendments 16, 17 and 342, I start by reaffirming our view that Clause 2 is an essential provision for providing certainty and continuity regarding our law after exit day. I think that that is plain to all noble Lords. I shall then say a little more about why Clause 2 must stand part of the Bill. This clause, along with Clauses 3 and 4, delivers one of the core purposes of this Bill: maximising certainty for individuals and businesses when we leave the EU by ensuring that, so far as is practical, the laws that we have now will continue to apply. In that respect, Clause 2 preserves the domestic law that we have made to implement our EU obligations; we have touched on that already.

More particularly, on the point raised by the noble and learned Lord in this regard, Amendment 342 seeks to clarify that Acts of the Scottish Parliament are included within the clause only if they have received Royal Assent before exit day. I suspect that Amendment 16 also seeks to provide clarity on that same point. I am grateful for the opportunity to clarify any uncertainty that there may be here. Clause 2(2) states that,

“‘EU-derived domestic legislation’ means any enactment”

that is described in that subsection. Clause 14 defines the term “enactment” to include an enactment contained in an Act of the Scottish Parliament. An Act of the Scottish Parliament must have received Royal Assent; until that time, it is a Bill. Section 28(2) of the Scotland Act 1998 provides for this. So an Act of the Scottish Parliament that has only been passed and not received Royal Assent does not fall within this definition, and would not be categorised as EU-derived domestic legislation for the purposes of this Bill. I believe that the noble and learned Lord rather suspected that this might be the case; his concern seemed to be one of certainty as regards the drafting.

The same applies in relation to Acts of the UK Parliament. The reference to “passed” in Clause 2(2)(b) is therefore a reference to the purpose for which the enactment was passed, not whether it was passed. In that context, I venture to suggest that Amendments 16 and 342 are unnecessary.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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I am grateful to the noble and learned Lord. He does get my point that it is for clarity; in Section 28 of the Scotland Act, there is a distinction made between being passed and Royal Assent. It is the word “passed” that appears in Clause 14(1) and the noble and learned Lord knows as well as anyone that, when statute uses the same word, it may—not unreasonably—have the same interpretation. Yet, a Bill “passed” by the Scottish Parliament is not the same as “enacted”. Simply, does it really go to the heart of this Bill that the Government could not bring forward an amendment just to make it clear beyond doubt and, therefore, not allow unnecessary litigation at some stage in the future? Because you can bet your life that something will come up when someone finds some clever point.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble and learned Lord. I do not have any red lines so far as Clause 2 is concerned in this context. It appears to me that if there is concern about a lack of certainty, we can take that into consideration, and we will do so in time for Report. I do not indicate that we will bring forward any amendment in regard to this; it seems to me, as the noble and learned Lord will appreciate, that context is everything. We have to read the provision and the use of “passed” in Clause 14 in the context of what is said in Clause 2(2), but I hear what he says. I am not seeking to strike it down, as it were, at this stage; I am merely seeking to explain the approach that we have taken to this issue and why we consider that, on the face of it, Amendments 16 and 342 are unnecessary.

Amendment 17 seeks to mirror the language of Clause 3 in terms of the cut-off point for inclusion within the scope of the clause. Clause 2 of course works in conjunction with Clause 3, which converts direct EU legislation into domestic law. Both clauses take a snapshot of the law that is in place immediately before exit day. EU-derived domestic law will fall into the scope of Clause 2 if it has been enacted before exit day—that is, if it can be said to be on the statute book at that time. There is of course a different test employed for direct EU legislation to be retained under Clause 3, because direct EU legislation must be operative within UK law “immediately before exit day”, as defined in Clause 3(3). That is why there is a distinction between the two clauses; they serve distinct purposes.

As I say, we are listening and we will consider further the point made by the noble and learned Lord and by the noble Lord, Lord Foulkes. Having given an explanation of the Government’s position, I hope that, at this stage, they will see fit to withdraw or not move these amendments.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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I am very grateful to the noble and learned Lord for his response and his willingness to look at this and take on board the comments made. A simple amendment could be made that in no way detracts from the purpose of this Bill; if anything, it would add to that purpose in terms of legal certainty. Using the word “passed”, which, from what the noble and learned Lord said, has a different meaning in two Acts, is not helpful. I do not think the amendment in any way departs from or mitigates what the Bill seeks to achieve and I therefore strongly encourage the noble and learned Lord and his colleagues to bring forward a simple amendment to provide legal certainty. I beg leave to withdraw the amendment.

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Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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I agree: the Committee will be pleased to know that, had the letter ended like that, I would not be on my feet today. These are important measures for our international co-operation, and if the Government would say, “Yes, this is something that we are willing to do”, that would take us forward. I hope that the noble and learned Lord may be able to give us that assurance as he responds.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

Baroness Ludford Portrait Baroness Ludford
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Nobody, I think, has questioned that. We are talking about directives.

Lord Keen of Elie Portrait Lord Keen of Elie
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That is what we began talking about but the noble Baroness, Lady Hayter, for example, has referred to regulations. I will come on to address the point she made, but regulations have direct effect and if a regulation has direct effect by exit day it will form part of retained EU law. Directives have no direct effect in the domestic law of a member state. Directives have to be the subject of implementation and in that regard a transition period is given to member states for the implementation of a directive. There may be directives that have been adopted prior to the exit date which have a transitional period that will expire by the exit date specified in the Bill. In that event, the Government have indicated that they will seek to implement those directives that require implementation by a transitional date before the exit date. Therefore, they will become part of retained EU law because they will have been implemented in our domestic law.

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Lord Pannick Portrait Lord Pannick
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Perhaps I might suggest to the Minister, and ask him to confirm, that there will also be directives that have passed their implementation date and have not yet been implemented in domestic law, but are sufficiently clear and precise that they confer individual rights under EU law and, therefore, to that extent they will be part of retained EU law.

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect, that is a slightly different point. First, the Government are committed to implementing in domestic law those directives which have a transition period that expires before the exit date. There are, however, circumstances in which a directive may have direct effect in a question between an individual and the state but has not been implemented in domestic law. That is subject to a determination by the Court of Justice of the European Union or, indeed, by our own courts. In circumstances where a directive has not been implemented by the end of the transition period and has direct effect as determined by the courts of justice, and that has been determined prior to the exit date, that will be brought into domestic law by way of Clause 4. That is the point of Clause 4 in that context.

Where a directive has been adopted before the exit date but has an implementation period which expires after the exit date, and has not been implemented in domestic law by the exit date, that will not form part of our domestic law and therefore it will not form part of EU retained law for the purposes of the Bill.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering
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Both my noble and learned friend the Minister and my noble and learned friend Lord Mackay have indicated that the Government could choose to implement directives falling into that category if they wished to do so. My question to the Government is: what is the legal basis for doing so? My understanding is that there is not a legal basis at the moment, which is why I tabled this amendment.

Lord Keen of Elie Portrait Lord Keen of Elie
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There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside. The point is more central than that: directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after the exit date.

Lord Wigley Portrait Lord Wigley
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Following this is fairly complicated, is it not? To add to that complication, what will be the position on devolved matters—such as environmental matters, which are to a very large extent devolved—where the implementation may be on different dates in different devolved regimes?

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Lord Keen of Elie Portrait Lord Keen of Elie
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We have to be clear here about the distinction between implementation and application. Essentially, there is only one date for implementation. That is when we implement the directive into our domestic law. There may be situations—and if I misunderstand the noble Lord’s question, I am sure he will tell me—in which there is a directive, or indeed a regulation, that is adopted into domestic law but which applies only at a date after the exit date. There are examples of regulations as well, where we accept that the regulation has come into domestic law but its actual operation is deferred, perhaps until 2020. That regulation or that provision will form part of our domestic law at the exit date, even though the operative provisions come into force only after the exit date.

Lord Wigley Portrait Lord Wigley
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I do not want to overlabour this point, and perhaps it is one that the Minister could look at between now and Report in case there is any validity in what I am raising, but since it is by instruments that are passed in the National Assembly for Wales or in the Scottish Parliament that some of these will be put into force, there will quite likely be different dates for those purposes, and that could have a material effect. Some may fall one side and others the other side of 29 March 2019.

Lord Keen of Elie Portrait Lord Keen of Elie
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If I understand the noble Lord’s point, he is suggesting that we may have a situation in which a directive that has been adopted is implemented in England or in Wales or in Scotland but on different dates.

Lord Wigley Portrait Lord Wigley
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Yes, indeed, or it may have failed to have been implemented within the timeframe in one area and therefore does not get implemented but does get implemented in another area.

Lord Keen of Elie Portrait Lord Keen of Elie
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In that event, it will be by reference to the exit date that we determine whether or not it forms part of the domestic law.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick (CB)
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I wonder if the Minister could deal with one category which I do not think he has dealt with yet; that is, a directive that is adopted before the exit date but whose implementation date is after the exit date but within the standstill period which the Government are currently negotiating in Brussels—and which, it is no secret, will involve the Government accepting that all the obligations of European law will continue to apply during that period.

Lord Keen of Elie Portrait Lord Keen of Elie
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The implementation period is a wholly distinct issue from what we have to address in the context of the Bill. The implementation period has yet to be negotiated. The outcome of that implementation negotiation has yet to be determined. In the event that we agree an implementation period, clearly there will have to be further statutory provision—a further Bill—addressing our rights and obligations during that implementation period, and it may be that that further Bill will amend this Bill with regard to the effect of the exit date on further EU legislation, whether in the form of regulations or directives, after 29 March 2019. But that is not an issue for this Bill. This Bill is dealing with the situation at exit, subject to the fact that, if there is a negotiation, things may change.

Lord Adonis Portrait Lord Adonis
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For those of us who have not been following the minutiae of the Government’s announcements, can the Minister say that it is an absolute commitment on the part of the Government that directives that have been adopted and for which the implementation date falls before 29 March next year will be implemented?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, my understanding is that the Government are determined, and have the present intention, to implement directives that have been adopted and which have an implementation period that expires before the exit date. I cannot give an absolute assurance to that extent but that has been and continues to be the Government’s position. Indeed, to put it another way, we will continue to perform our obligations as a member of the EU, as we are bound to do by the treaty provisions. One of our obligations is to implement directives that have been adopted in Europe within the implementation period or by the transition date that is set out.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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I express my gratitude and admiration for the way that the noble and learned Lords, Lord Mackay of Clashfern and Lord Keen of Elie, are bringing lustre to the Scottish Bar in the way that they are answering all these questions so brilliantly and with such trouble. My inquiry relates to a directive requiring implementation that has not been implemented, where there are certain rights that would be directly enforceable by an individual and there is no court case that says that. Can you go to court afterwards and say, “We can enforce that because there was a directive prior to the date of exit”? No court has said that it was directly enforceable; you could argue subsequently that if you win, you win—this would be in the domestic courts—and can say it is enforceable. Would that be covered?

Lord Keen of Elie Portrait Lord Keen of Elie
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No, that would not be covered, because in those circumstances there would have been no crystallisation of the direct right prior to the exit date. That is our position with regard to that point—but I am obliged to the noble and learned Lord for his acknowledgment that we are answering questions as they are posed. I was rather hoping that my noble and learned friend Lord Mackay of Clashfern might actually come forward to the Front Bench and allow me to retire to the second tier in order that this matter could be dealt with even more cogently than I am able to do.

I return for just a moment to the actual amendment. I have sought to emphasise—clearly, I hope—why the amendment is not appropriate in the present context. It would simply take away from one of the principal purposes of the Bill, which is to determine that there is an exit date—a cut-off point—when we will determine the scope of our own domestic law. I can quite understand the point made by the noble Baroness, Lady Young, about emerging provisions in the EU that have been worked on for many years and that would bring about appropriate and attractive standards for various aspects of our life in the United Kingdom—but, of course, it would be perfectly open to this Parliament to decide, in light of what has already been agreed in Europe, that it would be appropriate to have these standards in our domestic law, and we will have the means to do that. It is just that they will not form part of retained EU law for the purposes of this Bill.

On the noble Baroness’s amendment, I respectfully suggest that the mechanism that she has put forward—that you somehow retain the ECA for some purpose after it has been repealed—simply would not work. I appreciate that this is Committee, and we are actually looking at the underlying purpose of the proposed amendment and therefore have to consider whether we find that attractive and then look for a way to make it work. Nevertheless, it is appropriate to notice that the actual mechanism proposed in the amendment would not work.

I hope that I have addressed most of the points raised by noble Lords, but I agree with the observations made by the noble and learned Lord, Lord Brown, my noble and learned friend Lord Mackay and the noble Lord, Lord Pannick, with regard to what this Bill is attempting to achieve. It is attempting to achieve certainty as to the scope of our domestic law at exit date. That is its purpose, and we must keep that in mind.

Baroness Ludford Portrait Baroness Ludford
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Will the Minister take another look at Clause 4(2)(b), which is a double negative? It talks about rights that are,

“not of a kind recognised”,

by the European Court or any UK court. When he was talking earlier about a directive that had direct effect, I think I recall him saying that it would have had to be recognised by a court decision as having direct effect—but the wording of Clause 4(2)(b) suggests a direct effect if it is “of a kind” that has been recognised by the European Court or a UK court. He might not be able to reply immediately but perhaps, when we come to Clause 4, he could look back at what he said today on directives with direct effect and be sure that there is a logical fitting together with Clause 4(2)(b).

Lord Keen of Elie Portrait Lord Keen of Elie
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In my submission, it fits entirely with what is said in Clause 4(2)(b) and is consistent with that. It points to the necessity of there having been a recognition by the European Court or a court or tribunal in the United Kingdom for those purposes. It may be that the noble Baroness will want to take issue in due course with the use of the word “kind”, and no doubt we will come to that when we consider amendments to Clause 4.

Lord Pannick Portrait Lord Pannick
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This is the precise subject of Amendment 26, which arises out of a recommendation from the Constitution Committee. If the noble and learned Lord, Lord Falconer of Thoroton, is interested in this subject, we are going to debate it under Amendment 26.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble Lord, but we have ranged rather widely in the context of the present debate—or, to use my noble friend Lord Deben’s term, we have got a little bit fuzzy as regards the precise terms of the amendment. I hope that, in light of the explanations that I have sought to give, including the reference to regulations and the point raised by the noble Baroness, Lady Hayter, to which we will return in due course, the noble Baroness will see fit to withdraw her amendment.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering
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I am grateful to all those who have spoken in this debate. I had not realised that we were going to have such a full debate, but it shows the importance of the issue that has been raised in Amendment 18. With regard to fuzzy wording, I am sure that my noble and learned friend Lord Keen, like myself, remembers a key distinction. I was one of the first law students to do the compulsory six-month constitutional law course on EU law, in which we learned straight off that a regulation is directly applicable and does not require any other implementation, whereas a directive is given direct effect only through implementation.

I am grateful to the noble Lords, Lord Wigley and Lord Liddle, who managed to put more flesh on the bones and give much greater clarification to what I was hoping to say. I am a little concerned by the Minister recognising that there is no legal basis for what we are seeking to do here—and my noble and learned friend Lord Mackay of Clashfern as well. I suggest, mindful of the comments made by the noble Lord, Lord Pannick, that this amendment has established that a legal basis is required, and if this is not the wording that would give that legal basis, I would request that the Government come forward by Report with the legal basis in the form of an amendment on which the House could agree. On that basis, I beg leave to withdraw the amendment.

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Lord Pannick Portrait Lord Pannick
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The only reason why the noble Lord is not carrying me with him is that I do not understand the purpose of paragraphs 3 and 5 of Schedule 8. It seems to me extraordinarily broad, which is why I am seeking an explanation from the Minister as to why we need these powers, given that we also have Clause 7 in the Bill, which is time limited.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords—

Lord Judge Portrait Lord Judge (CB)
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May I just have a few moments?

Lord Judge Portrait Lord Judge
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Well, noble Lords may not want to hear what I am going to say. I have had a sense developing over the last 40 minutes that we are well ahead of ourselves. We should be discussing these issues when we come to decide the very important question of whether retained EU law is to be treated as primary legislation, subordinate legislation or a bit of both. We will then have a debate on Clause 7, which entirely addresses this issue of subordinate legislation and Henry VIII powers, and we will come again to it when we debate Clause 9.

I just make two points. First, no Parliament can bind its successor. We do not know what a future Parliament will think about all these various matters raised in proposed new subsection (6) in Amendment 21; they are very important issues, but we cannot bind anybody. Secondly, in relation to the exercise of any Henry VIII powers—and there will of course have to be careful thought given to it—I am fascinated by the proposal in proposed new subsection (2) in Amendment 21 that a schedule should list,

“technical provisions in retained EU law that may be amended by subordinate legislation”.

When we come to look at Henry VIII powers, do we not have to take a rather more revolutionary look at them? Should we not be saying to ourselves that the Government of the day—whatever Government it may happen to be—should, at the very least, in the proposal for subordinate legislation, set out which terms of primary legislation are being repealed, amended or affected by the secondary legislation? That is some food for thought.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, as may have been observed during the passage of the Investigatory Powers Bill, the Government are always listening. I am most obliged to the noble and learned Lord, Lord Judge, for his observations, because they go to the very heart of the point I want to make. We are, in a sense, having the wrong debate in the wrong place, but I am also relieved to hear from my friend the noble Lord, Lord Pannick, that he does not understand paragraph 3 of Schedule 8, because I was rather concerned about his earlier interpretation of it under reference to the opinion of Pushpinder Saini, QC—I will come back to that in a moment, if I may.

The areas that these amendments seek to protect, such as employment rights and environmental standards, are issues that are important to every Government, and in particular this Government. Of course, we are anxious to ensure that rights and standards such as these are maintained—indeed, where possible, increased —after we leave the EU. It might be observed that UK protections in many of these areas—for example, parental leave—in fact go beyond the level of protection provided for in EU law, so let us keep this in context.

It is important, however, that we are able to address deficiencies to ensure that the protection of these rights and the standards that they reflect continue to function effectively and that the Government are able to amend legislation in line with our history of leading in these areas of protection. When people voted to bring back power to our Parliament and to bring back control of our laws, they did not vote to put them in the deep freeze for any number of years. We have to see this in context: we are talking about thousands of regulations—somewhere in the order of 12,000 regulations —which were of course not the subject of parliamentary scrutiny; and we are talking about thousands of SIs implementing directives, which were of course not the subject of parliamentary scrutiny, which have come into our law and will be part of our law on exit day, because they will form part of the area of retained EU law.

The noble Baroness, in her amendment, proposes a schedule of “technical provisions” in an area where we are dealing with enormous quantities of law, by way of regulation and by way of implemented directives. The first point that would arise is: where is the line to be drawn between what is a technical and a non-technical provision? The noble and learned Lord, Lord Falconer, alluded to this as one of the three criteria he had in mind. You have to be able to define these criteria, otherwise you immediately run into a further issue. That is in itself a very real challenge: how would we define or class a technical issue in the context of seeking to update retained EU law?

Perhaps the more important point, however, is that much of what has been said here anticipates the issues that we will debate in the context of Clause 5, on the classification of retained EU law, and, more particularly, Clause 7, in relation to the exercise of certain powers by government in dealing with the body of retained EU law. Again, it is important to try to put this in context. We have had references to the suggestion that the Government are taking untrammelled, unlimited powers to do virtually anything with the statute book. Let us not, even if we think we have a good case, overstate it because, in doing so, we rather spoil our argument. That is not at all what the Government seek to do. Clause 7 is concerned with how we deal with deficiencies arising from our withdrawal from the EU. It is therefore concerned, as it says, about the making of regulations which are,

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively”.

We are not talking about wholesale policy changes to our employment or environment laws, our standards for consumers or anything of that kind. The noble Lord, Lord Pannick, referred to—

Lord Davies of Stamford Portrait Lord Davies of Stamford
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I am grateful to the noble and learned Lord for giving way. Of course, we hope that we are not talking about any of those things. We hope that we are not talking about radical changes and reductions in some of the essential regulation which we have all said is so necessary. However, we need a little bit more than hope. We need some evidence of the Government’s commitment to restrain themselves when it comes to using these powers.

Lord Keen of Elie Portrait Lord Keen of Elie
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That is why Clause 7 is drafted in the terms in which the noble Lord will find it in the Bill.

Reference was also made to the provisions of paragraph 3 of Schedule 8. I am not sure how the noble Lord, Lord Pannick, interpreted that paragraph but let us be clear: it refers to existing powers, not to powers created under this Bill. Those powers already exist in respect of existing legislation. They are not being extended. If the Government truly intended to bring about wholesale change to these policy areas, and could do so on the basis of their existing powers, perhaps they might have done so already. The provision does not extend to these powers. Therefore, again, with respect, it appears to me that the matter is being taken out of context. However, I would be happy to look at the opinion on this from Pushpinder Saini referred to by the noble Lord, Lord Pannick.

Lord Adonis Portrait Lord Adonis
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My Lords, he pointed out that Schedule 3 is not the key—

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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, we must make progress at this stage, if the noble Lord does not mind. We have to keep moving.

I come to the nub of the point. If there is a concern about the powers being conferred on Ministers to ensure that the retained EU law works after exit, that arises in the context of Clauses 7 and 5, which will be the subject of future debate in this House. As I say, it is not appropriate to try to represent the powers already set out in the Bill as extending beyond the boundaries set out precisely there about correction, regulation and making retained EU law work. I respectfully suggest that the route proposed by the noble Baroness is not one that we should go down as we would simply run into the sand. If we were to list technicalities and technical changes in all these areas of legislation, we would be here in 10 years’ time trying to produce such a schedule; let us be frank about it. Of course, many people may wish that we will be here in 10 years’ time attempting to achieve that. In that context, I invite the noble Baroness to consider withdrawing her amendment and invite the noble Lord, Lord Judd, not to move his.

Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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I thank all noble Lords who have spoken. I know the Committee will not believe this but the three noble Lords I most want to thank are the noble Lords, Lord True and Lord Faulks, and the noble Viscount, Lord Trenchard. I thank the noble Lord, Lord True, for raising my spirits. I love the words “Labour Government”; I will use them again and again. I thank the noble Viscount, Lord Trenchard, because sometimes when you know what you are talking about, you assume that everyone else does. I had got something wrong and it was not clear. I was not talking about how, under this Bill, the current EU rules will be put into legislation by statutory instruments. We are content with that. We will in due course argue about whether the relevant word should be “necessary” or “appropriate”, but that is not the purpose of this amendment. I thank the noble Viscount, Lord Trenchard, for giving me the opportunity to say that.

The purpose of the amendment is about looking way into the future and future-proofing what we are putting into UK legislation and to make sure that it cannot then be tampered with by means of statutory instruments. It is not about the current work that many of our colleagues on the statutory instruments committee are about to undertake. We are talking about the future. I again thank the noble Viscount for giving me the opportunity to discuss that.

I say to the noble and learned Lord, Lord Judge, that I said at the beginning of this discussion that we would come on to how we deal with the bigger issues involved in this matter. However, today, I want to discuss the human, environmental and consumer rights that we sometimes risk losing sight of when we get into the technicalities of law and how we are going to hold on to those. As I said, I absolutely accept that we may deal with the technicalities later.

The noble Lord, Lord Faulks, said that certain bits of retained EU law could possibly be dealt with by statutory instruments and others by primary legislation. Elsewhere in the Bill judges are allowed to deal with measures on a case-by-case basis. But in the case of retained EU law, we have a difficulty as I think he said that he was happy for the Government to decide which measures could be dealt with by secondary legislation. Perhaps that is the nub of the problem.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Lord Pannick Portrait Lord Pannick (CB)
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I can tell the noble Lord and, indeed, the Minister that there will be a probing amendment on paragraphs 3 and 5 of Schedule 8. It has been tabled today and will be on the next Marshalled List.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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The group that we are dealing with is not actually mine but, with the leave of the Committee, I will respond to the inquiry. In light of the reference to the probing amendment, the appropriate step would be for us to consider that amendment and determine what response we shall make to it. If I am in a position, in light of that amendment, to write to the noble Lord ahead of Report and elaborate on our position, rather than responding by way of a government amendment or something of that kind, I will do so.

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Baroness Deech Portrait Baroness Deech (CB)
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May I ask the Minister a few questions, because I suspect that his response is going to proceed on the basis that the Hague conventions are sufficient? It is true that the biggest number of abductions that come to our courts relate to Pakistan, the USA, Australia and then Poland. It would also be very sad if either we or the rest of the EU put ideology ahead of the welfare of children. Therefore, I want to know what the Minister’s prediction is as to the arrangements that might be made.

Overall, I feel that the amendment is perhaps too narrow. We have units in this country that study the effect of abduction: we have a permanent bureau, the International Centre for Missing and Exploited Children and the International Child Abduction and Contact Unit, which can look not just at the European Community countries but at the others. We need a global view of the welfare of children and cross-border abduction, not just an EU view. How does the Minister think we can cope, given that the EU takes apparently 164 days to deal with returned children, whereas we manage to do it in 90 days? For a small child, a matter of a few months is extremely important.

Is the Minister satisfied that we can swiftly and properly sign up to the 2007 Hague convention, which at the moment we are a party to only through the EU? We need to, and we should be able to, join it in our own right. Those are the questions that I put to the Minister.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I am obliged. “Reciprocity” was the term used and emphasised by the noble Baroness, Lady Sherlock, and my noble and learned friend Lord Mackay of Clashfern. They both recognised the significance and the relevance of that term in the context of the issue we are discussing and of this Bill. They may have approached it from different directions, but there is a common recognition there. I will come back to that point in a moment, particularly in the context of this Bill and not the other Bills that may follow it in due course.

I acknowledge the commitment of the noble Baroness, Lady Sherlock, to family law and the rights that it provides to many of the most vulnerable in our society. I also extend my appreciation to the report on this subject produced last year by this House’s EU Justice Sub-Committee, under the chairmanship of the noble Baroness, Lady Kennedy. In addition, I understand that the noble Baroness, Lady Sherlock, met my noble friend Lord Callanan and officials to discuss this matter a week or so ago. I observe also that officials have engaged in discussions with a variety of groups, including Resolution and the Family Law Bar Association, and others at an EU level, to discuss this critical issue.

To the noble and learned Baroness, Lady Butler-Sloss, I say that I would be perfectly willing to meet—or at least to arrange a meeting with other Ministers who might be more directly involved in this issue—at some stage in order to discuss with all relevant and interested parties the issues that arise here.

I emphasise that the Government are committed to maintaining an effective system for the resolution of cross-border family law disputes once the UK leaves the EU in 2019—of course we are. Any system which requires cross-border dialogue and co-operation needs a common language to be effective. To that end, as part of our future partnership we want to agree a clear set of coherent common rules about: which country’s courts will hear a case in the event of a dispute—that is choice of jurisdiction; which country’s law will apply—that is choice of law; and a mutual recognition and enforcement of judgments across borders. That can be achieved within the EU and beyond the EU as well.

We are only beginning to embark on the negotiations of our future partnership with the EU 27 but we set out our position on this in a future partnership paper in August last year. That paper makes clear that an effective framework of civil judicial co-operation, which includes family law, is an important part of any deep partnership we want to establish with the remaining members of the EU. We believe that the optimum outcome for both sides will be a new agreement negotiated between the UK and EU as part of a future partnership which reflects our close existing relationship.

My noble and learned Friend, Lord Mackay of Clashfern made the point that the object of this Bill is to bring into our domestic law existing EU law so that we start out in the same place as the other members of the EU. We have to bear in mind the means of ensuring that litigation in a cross-border case involving UK and EU parties, wherever it takes place, can be as easy, efficient and cheap as possible. Such an agreement is necessary to provide confidence and certainty to families and individuals.

As the noble Baroness reminded us in backing up a point well made last year by the EU Justice Sub-Committee in its valuable report, reciprocity is key. This Bill can bring EU rules and regulations across into UK law, but it cannot place requirements on the remaining EU states. That is precisely why we want to negotiate a new deal with the EU and, as of this month, we are set to embark upon that negotiating process.

The current reciprocal rules on which we hope to model a new agreement provide a legal route to resolving what are often difficult and intractable problems. As noble Lords may know, and the noble Baroness readily appreciates, that can include determining in which member state a divorce takes place, child arrangements are made, maintenance issues are determined and, on the fraught issue of child abduction, the return of an abducted child is facilitated.

As I have mentioned, this area goes far beyond the EU. The EU, of course, is important, but we have the Hague conventions with respect to children, one in 1980 and one in 1996. The Hague convention in 2007 has the EU as a signatory, not the individual members of the EU. We will be taking steps to engage with the council on the Hague conventions in order that we can become individual signatories of that convention. I acknowledge the well-made point of the noble Baroness, Lady Sherlock, about the three-month time lapse that could potentially occur. We are mindful of that in setting about the process of negotiation because no one wants to see a gap in the process.

We also have the Lugano convention which engages with not only the EU, as a signatory, but also the other parties to it—Norway, Iceland and Switzerland. Returning to the point raised by the noble Lord about having regard to cases of another court, as between the Lugano convention and the EU it is agreed that each will have regard to the decisions of the other’s court. They are not bound by them or subject to the jurisdiction of the other, but they will have regard to them and take them into consideration when construing the rights and obligations that arise under these various conventions. So it is not making yourself subject to the CJEU but, in general terms, it is saying that you will respect its decisions and look at them for consideration.

Perhaps I may elaborate on that a little. The role of the CJEU is often either misunderstood or exaggerated in this context. What we are concerned about, generally speaking, is the ability of a court in one jurisdiction to recognise the pre-eminent jurisdiction of another country, the willingness of the courts in one country to recognise the orders made by the courts of another country, and the willingness of the courts in one country to enforce the judgments of another country in respect of these matters. Of course, if you are within the EU, the construction of a particular provision such as the Brussels convention—Brussels Ia, IIa and so on—would ultimately be a matter for the CJEU. However, in negotiating with our other partners, we recognise where we start from and the wide ambit of these conventions, and we understand how critical they are to family life going forward. No one is going to ignore them or turn their back on them, so I can assure noble Lords that we are intent on negotiating this. The precise way in which it will be done will have to be the subject of negotiation with our EU partners.

The noble Lord, Lord Carlile, asked me, as it were, to enumerate the negotiations that are ongoing, but so far we have been dealing with the separation agreement. From March we have set upon the negotiation of our future partnership; that is what the Prime Minister set out in her recent speech.

With regard to the other jurisdictions within the United Kingdom, officials within the Ministry of Justice are in regular contact with officials in Scotland and in Northern Ireland in regard to these matters. Of course we take account of those, and I hope that the noble Lord, Lord McConnell, will recognise that I am conscious that there are different laws in the different jurisdictions of the United Kingdom.

Lord McConnell of Glenscorrodale Portrait Lord McConnell of Glenscorrodale
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I thank the Minister for giving way. Of course discussions are taking place between officials in the different departments, but are Ministers talking to each other and are agreements being reached that will ensure that the right decisions are made to serve the different jurisdictions of the UK?

Lord Keen of Elie Portrait Lord Keen of Elie
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I cannot say that agreements are being reached at this time because we are only setting out on the process of negotiation with regard to the future partnership; I cannot take that any further at this stage. However, our position is that family law co-operation is critically important, and it is no different from our general position with regard to civil co-operation.

I would acknowledge that the development of Brussels IIa is an improvement on the Hague conventions, and indeed I believe that some would acknowledge that it is an improvement on the terms of the Lugano convention in this regard as well. The terms have been refined and developed, and it may be that there will be a further negotiation and conclusion over Brussels IIa—what might be termed as Brussels IIb, I suppose—which may well occur after Brexit. Nevertheless, in order to ensure that we have reasonable alignment and therefore the basis for reciprocity, we will want to take into consideration such developments in the law.

Let us be clear: generally speaking, these developments take place for all the best reasons. They are developments that reflect improvements, so why would we turn our face away from improvements in the law on the reciprocal enforcement of family law matters related to maintenance, divorce and child abduction? We have no cause or reason to do so and of course we are going to embrace these matters.

I appreciate that the amendments in this group are probing in nature, but I shall try to address some of the specific details. The report called for in the first amendment tabled by the noble Baroness would require the Government to publish details of how rights in EU family law operate in domestic law as well as key details of the negotiations within six months of this Bill receiving Royal Assent. With great respect, that is an arbitrary deadline which makes no reference to the position of the negotiations at that stage or the other documents that the Government will be publishing on the subject. These documents include not only any final agreement reached in the negotiations regarding continuing judicial co-operation on family law, but also the explanatory material that Ministers will publish when they exercise their key Bill powers to amend retained EU law. That will include retained EU family law. So, as I am sure the noble Baroness is aware, any agreement between the UK and the EU will be detailed clearly within the withdrawal agreement and domestically legislated for in the upcoming withdrawal agreement and implementation period Bill, which Parliament will have a full opportunity to scrutinise. However, I have to say that it does not arise in the context of this Bill.

The next amendment concerns the jurisdiction of the CJEU. We will discuss that in more detail when we come to debate Clause 6, so I will not take up a great deal of time although I want to make a couple of points. First, it is not necessary for the UK to be subject, unilaterally, to CJEU jurisdiction to secure a reciprocal agreement in this field any more than it is a requirement of the signatories to the Lugano convention to secure agreement with Brussels regarding family law matters. There are a number of existing precedents: not just Lugano, but the Hague convention as well. As I have indicated, the jurisdiction of the CJEU is sometimes either exaggerated or misunderstood in this context. In the EU, it is of course the final arbiter of the construction and application of EU instruments, but that does not mean that we have to embrace the CJEU’s jurisdiction to have a suitable partnership agreement with the 27 members of the EU.

Baroness Ludford Portrait Baroness Ludford
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In his lengthy reply, the Minister appears to perpetuate some of the misunderstanding that underlay the Prime Minister’s speech on Friday, which is that somehow if you mirror the laws of the EU 27 and start from the same position, you do not need the rest of what Commission jargon calls the ecosystem—in other words, the common rules and the enforcement of institutional and supervisory mechanisms. Surely that is the difference between the EU context and the Hague and Lugano conventions, and accounts for the difference between having regard to and mutually recognising and enforcing judgments. It is part of a complex of arrangements. There is a qualitative difference between the international arrangements and the EU arrangements, which does not seem to come through in the Minister’s response.

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect, neither I nor the Prime Minister misunderstood any of that. With great respect, I want to correct the noble Baroness on one point: that ecosystem is simply not required for mutual recognition and enforcement of judgments by two separate jurisdictions. That happens between the countries of the Lugano convention and countries in the EU in any event. I am talking about starting from the same point, with common rules regarding judicial recognition and enforcement, and moving from there to the negotiation of a new partnership. We do not foresee the sort of difficulty that the noble Baroness alludes to in that context.

At this stage, I want to come back to the point I was seeking to make. First, it is not necessary for the UK to subject itself unilaterally to the CJEU’s jurisdiction to secure a reciprocal agreement. Many other countries do that. Secondly, in any event, the Government have been clear throughout debate on the Bill that it is in no way designed to legislate for any future agreement between the UK and the EU. That is not the purpose of the Bill. We cannot unilaterally legislate for our future relationship with the EU simply by including in our domestic legislation certain provisions about recognition of family law, maintenance and other agreements—a point that the noble Baroness, Lady Sherlock, readily acknowledged at the outset of her opening remarks some considerable time ago.

I understand that the intention behind Amendment 120 is to make sure that there can be continued application of international agreements, such as the Hague 2007 maintenance convention, which the UK currently operates by virtue of its membership of the EU. Of course, we are intent on doing that; as I noted earlier, we understand that there is a potential three-month gap there, which we need to address. I hope I can reassure the noble Baroness that we are clearly intent on securing an agreement, albeit not as an EU member and not subject to the direct jurisdiction of the CJEU, which ensures that we can maintain the highest standards of family law and mutual recognition, whether it be jurisdiction, choice of law or enforcement. I invite the noble Baroness to withdraw her amendment.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames
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I entirely understand the response the noble and learned Lord gave to the effect that you can, of course, have a treaty to ensure reciprocity, but he does not appear to recognise the role of the CJEU in the difficult cases where there is an argument about what reciprocity means and the obligations on states that are parties to that treaty. I do not know that there has been any explanation from the Government of how we deal with the difficult cases without accepting the jurisdiction of the CJEU. Would he like to elaborate?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am happy to repeat the observation I made earlier: these difficult cases are resolved, for example, between Norway, Iceland, Switzerland and the other members of the Lugano convention embraced within the EU. In that context, each of the courts—the Lugano court and the CJEU—respects each other’s judgments, but they are not bound by them. That happens all the time. Ultimately, it would be for the domestic courts of each jurisdiction to determine what they were and were not prepared to enforce in the context of these agreements. That does not present any insurmountable difficulty, any more than it does in the context of the reciprocal recognition and enforcement of orders made pursuant to the current Hague conventions.

Again, I am obliged to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Kennedy of The Shaws, for the report. I repeat my offer of further meetings to the noble and learned Baroness, Lady Butler-Sloss.

Baroness Sherlock Portrait Baroness Sherlock
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My Lords, I thank all noble Lords who have contributed and the Minister for his reply. When I tabled these amendments—I realise that they have not found favour in all corners of your Lordships’ Committee—my aim was simply to have a discussion that I thought had not happened since the Bill began. It had not happened in another place and, with all respect to the Government, it has not been happening in the kind of detail we need in the publications we have seen so far. We have at least now begun to have this conversation and I am delighted that we have.

The debate has established to so many people quite how important these family law provisions are. They are fundamental to the welfare of so many of our children, because issues of child abduction, child protection and child contact are caught up at the centre of this. Those points were made very well by my noble friends Lady Massey and Lord McConnell of Glenscorrodale, and by the noble Baroness, Lady Tyler, and the noble Lord, Lord Carlile. The importance of a single effective family law system was stressed very well by the noble Lord, Lord Marks, who also expressed how well-functioning and widely admired our system is. The need for it was underscored so well. I am hugely grateful to the noble and learned Baroness, Lady Butler-Sloss. When I heard her speech I wanted, in the way children do nowadays, to say “what she said”. She expressed it so well that I should have walked away at this point, but I think convention prohibits it so I press on.

I will pick up two or three points that were in contention. I do not think I will take up all the points made by the noble Lord, Lord Farmer, but his most important contention was that the provisions in the Hague conventions and elsewhere are sufficient unto the day. I hope he will take the opportunity, when he can read Hansard, to reflect on the comments made by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Kennedy of The Shaws, and to look at how the weight of opinion in family law is clearly against him on this matter.

I would be happy to discuss this further outside the Committee, but to make a couple of specific points, Brussels IIa is distinctly better than Hague because it has a stricter timetable on abduction. There is a back-up mechanism—a second bite of the cherry—so that the child’s home country has another opportunity to overrule a decision by another court not to return an abducted child. The Brussels II recast will make that far better still.

The noble Lord, Lord Farmer, mentioned the provisions on divorce, which I found harder to understand. My understanding is that the 1970 Hague convention is much more restrictive than the current arrangements and that very few EU members are signed up to it anyway. It has no direct rules about jurisdiction, so we would be back to these forum conveniens arguments deciding expensively where which court should rule. Those things take at least two days in court, probably with a circuit court judge or above. I do not think there is a practical alternative on divorce, but I would be very interested if the noble Lord wanted to intervene or to talk to me later to challenge that.

I hope that we would all widely accept that the current EU provisions are the superior offering available. The challenge would be to find out how we can best salvage what is there. I take the point made by the noble and learned Lord, Lord Mackay of Clashfern, from whom I dissent with great trepidation, that the Bill is doing what it can to replicate the current provisions. The problem is that, by importing those provisions, it is not replicating the current situation, because, by doing so in a context of no reciprocity, it is creating asymmetry between our obligations to the EU 27 and theirs to us. That needs dealing with very early on.

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Lord Adonis Portrait Lord Adonis (Lab)
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My Lords, when we last debated this issue, the Advocate-General for Scotland said that he was very attracted to the proposals published by Professor Paul Craig in his blog—the noble Lord, Lord Pannick, referred to that. I notice that Professor Craig published a subsequent blog on 26 February, also referred to by the noble Lord, in which he suggests that, once the process of transposing law has taken effect, we should assign,

“legal status to EU retained law in the UK based on the status it had in EU law”

Having read his blog as a non-lawyer, I felt that, if the intention is to give certainty, the proposals of Professor Craig would do that—except in one key respect which I hope the Minister might comment on: what process would be undergone between now and next February to allocate the huge body of retained law to one or other category if we were to adopt Professor Craig’s mode of proceeding? Since the Solicitor-General said in the House of Commons that about 20,000 pieces of EU law will be transferred, and if it were possible to establish, as Professor Craig sets out, a criterion based on the intention of existing EU law which would divide between primary and secondary legislation, can the Minister indicate, if he is minded to go down that route, what process would take place, so that, on 29 March next year, we know the status of law being transposed?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords—

Lord Goldsmith Portrait Lord Goldsmith (Lab)
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We need to speak from these Benches as well.

The noble Lord, Lord Pannick, made a powerful speech in favour of his amendment, backed by the powerful arguments of the Constitution Committee. It is apparent that this gives rise not to a difference on what the end objective should be: the need for clarity; the need for a clear status for EU law; and the recognition that retained EU law will need to retain its position of priority over pre-existing UK law because that is the status it has at the moment and because, as we have been reminded in debate after debate, the Government have promised that EU law will be passed across on exit day as it is at the moment. The routes proposed by the Constitution Committee and the Bingham Centre for the Rule of Law—and in the interesting proposals put forward by the noble Baroness, Lady Bowles—demonstrate that it is possible to reach those objectives by different routes.

However, the methods put forward by the Constitution Committee and the noble Lord, Lord Pannick, have the merit of simplicity and elegance. The status of the law is clear. We do not have to go through a process of trying to decide between now and next February what it is; we certainly do not have to go through a process of allowing a Minister to use powers under Clause 17 to assign a process, which would be, as the Constitution Committee says, an unacceptable approach.

It would have the additional advantage, or so it would seem to me at least, that retained EU law would then have some protection against amendability, save by the processes of this House and the other place considering the amendments which ought to be made rather than by a process of delegated legislation—I say “some” protection, because it would not be complete. Those seem reasons why the elegant solution proposed by the Constitution Committee and the noble Lord, Lord Pannick, has much to commend it

I would like to read when it becomes available what the noble Baroness, Lady Bowles, said, to make sure that I fully understood all of it. I do not disagree with the intention behind it, but the proposal of the Constitution Committee may achieve it more readily and elegantly.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am obliged for all the contributions and for the opportunity to respond to this debate. These provisions and amendments may be technical, but, in debating them, we must not lose sight of the real practical consequences that follow from how we deal with this issue. As the noble and learned Lord, Lord Goldsmith, observed in passing, we are aiming at the same goal; it is a question of which route can most appropriately take us there. I shall come on in due course to look at some of the routes proposed.

Lord Goldsmith Portrait Lord Goldsmith
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I was referring to the different proposals by the Constitution Committee and the Bingham Centre, rather than to the Government’s proposals.

Lord Keen of Elie Portrait Lord Keen of Elie
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Then I reassure the noble and learned Lord that we are all intent on arriving in the same place; it is a question of how we arrive there. I shall deal with the routes that he touched on.

Perhaps I may correct one point: the noble Lord, Lord Adonis, referred to the work of Professor Craig and to some previous remarks that I had made about that. I commend to him what I said as recorded in Hansard. I referred to the publication of 26 February on the previous occasion; it did not come out after those remarks were made. I shall mention Professor Craig’s analysis in due course. The task of categorising such legislation would be challenging, but we would consider it as one route forward.

As we know, one of the core requirements of EU membership is the principle of supremacy of EU law. In the event of any conflict with domestic law, domestic law must give way. When we leave the EU, it would make no sense and would not be in keeping with our principles to leave that unchanged in our law; we all recognise that.

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Lord Pannick Portrait Lord Pannick
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It is more fundamental than that. The difficulty is, why use the concept of the supremacy of EU at all? It is surely inappropriate in a Bill of this nature.

Lord Keen of Elie Portrait Lord Keen of Elie
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Not necessarily in the context of retained EU law, which comes over with that principle of supremacy standing behind it. I will come on to deal with that in more detail. I understand that, as the noble Lord indicated, his amendments draw on the recommendations made in the Constitution Committee report on the Bill—although I was interested to note that Amendment 33 appears to go further than the recommendations put forward by the committee, in that it extends the status of primary legislation to all retained EU law, rather than just to law being preserved by Clauses 3 and 4 of the Bill. So there is that difference between Amendment 33 and the recommendations of the Constitution Committee.

I understand entirely the concerns here and the attraction that these amendments have as a result. It is only right, however, that we should examine fully the consequences of dealing with status in a one-size-fits-all way.

Baroness Young of Old Scone Portrait Baroness Young of Old Scone (Lab)
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Before the Minister moves on to the consequences, perhaps I might draw his attention to the status of environmental law currently drawn from the European Union. Of course, a considerable proportion of the anticipated changes that will be required are in environmental law, because so much of what we draw from Europe is environmental law. At the moment, the status of environmental law drawn from Europe has been pretty random, to be frank, and not at all reflective of the importance of the legislation. It has been random, whether it is drawn from a regulation which would be picked up by the clauses that the Minister mentioned or from a directive which would not be picked up in that way. But it did not really matter that it was rather random in its status, because the framework provided by the ECA was there, and therefore none of the legislation could be meddled with randomly by the Executive. Of course, once the safeguard provided by the ECA has gone, the status of existing environmental law becomes rather strange. It sticks out like a sore thumb, in that some of it that one would think was sufficiently important to be considered eligible, as it were, for primary legislation, has not got that current status, while other bits of law that are pretty functional and practical have a much lower status. So I urge the Minister to think about just how complicated the process would be if we did not simply adopt a single status for all that law.

Lord Keen of Elie Portrait Lord Keen of Elie
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First, with respect to the noble Baroness, I do not accept that the way in which environmental law has been received and enforced in our domestic legislation has been random. We differ at the outset to that extent. Of course, various propositions have been put forward, one of which is to give the status of primary legislation to all retained EU law—but that would raise difficulties that I will come on to address. The categorisation below that can be carried out: indeed, the noble Baroness tried to set out for Amendment 32A a hierarchy that could be employed in that context. But I do not consider that environmental law stands out in the way that the noble Baroness suggests.

Our concern is that, as I mentioned, a one-size-fits-all approach will not really work. Again, I quote from the Bingham Centre’s report, which stated:

“We consider that the Rule of Law objectives of legal continuity and certainty are better served by the approach taken by the Government in the Bill. The principle of supremacy is well understood and its future role is very limited, being confined to the relationship between retained EU law and pre-exit UK law. Treating all retained EU law as primary legislation enacted on exit day, on the other hand, will increase legal uncertainty because it changes the settled approach and leaves unclear whether the interpretive obligation, to interpret pre-exit UK law so as to be compatible with retained EU law, continues to apply”.


EU law that is being converted into domestic legislation under this clause covers both a vast range of different policy areas and different types of EU law, from regulations and directives applying to agriculture and farming to detailed and technical pieces of tertiary legislation, such as the list of contents for a dye or chemical. At the end of the day, treating all of that as primary legislation would present, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, a quite enormous task for Parliament if it is going to legislate to amend any of that retained EU law. How many Acts of Parliament would we have to contemplate putting through this House to wrestle with that demanding position? It really would be formidable. Because this legislation will come on to our domestic statute book in a unique way, it will not already have been scrutinised and approved by this Parliament—so we would be bringing in this enormous body of law and treating it as primary legislation when nobody in this Parliament had actually examined it.

The breadth of this body of law, in the case of EU law being converted, is unique in its nature, which is why the Government have deliberately chosen to tread rather carefully and not simply assign a single status to that retained law in domestic legislation. While assigning a single status for all purposes to all retained EU law may be theoretically possible, it would have the most difficult consequences and might lead ultimately to a situation in which we had to extend the use of Henry VIII powers beyond any reasonable limit normally contemplated in the context of provisions of this kind.

Beyond that practical consideration, there is a more fundamental concern about the constitutional appropriateness of what has been proposed. Domestic primary legislation is less vulnerable to subsequent amendment and is less vulnerable to challenge in the courts for a very good reason—because, as I said, it has undergone scrutiny by both Houses of Parliament, which means that there can be no doubt about Parliament’s intentions so far as that primary legislation is concerned. That would not apply to retained EU law.

While we are spending considerable time scrutinising this Bill, we are not able to scrutinise the law it is converting. Some of that law is itself the EU’s own subsidiary legislation, which has not been subject to comparable scrutiny anywhere. The noble Baroness observed on an earlier occasion that the European Parliament had had the opportunity to scrutinise much of this. It has had the opportunity to scrutinise some of it, but scant scrutiny—if any—of the subsidiary legislation has actually occurred in the European Parliament. By contrast, our proposed approach has been to deal with the status of converted law for certain specified purposes, such as that alluded to by the noble Lord, Lord Pannick: that is, paragraph 19 of Schedule 8 in the context of the Human Rights Act and rights arising from there.

Of course I understand the concerns put forward by the Constitution Committee and noble Lords about the consequences of the case-by-case approach that we are taking. I do not dismiss them lightly and I do not say that the Bill is a perfect solution to the issue that we have to address. As I indicated on day three of Committee, there is some scope for considering how we can take this forward. Reference has already been made to the work of Professor Paul Craig and the alternative model of categorisation that he proposed in his article of 26 February. That is something that we are looking at—albeit, as the noble Lord, Lord Adonis, anticipated, that it might involve a considerable amount of work. But if that can be an appropriate and effective categorisation, rather like that of the noble Baroness, it is something that we are willing to look at.

Again, I ask the Committee not to dismiss lightly the potential ramifications of treating all this law as having the status of primary legislation just to exclude the concept of supremacy from the operation of Clause 5. That would raise formidable problems for us and we do not see it as an effective way forward for the Bill. But, as I indicated previously, we are looking at the mechanisms employed here, and a mechanism that avoids actually applying the doctrine of supremacy may find greater traction as a way forward if we can come up with a suitable categorisation for retained EU law, rather than a blanket categorisation of primary legislation. I invite the noble Lord to withdraw his amendment.

Baroness Bowles of Berkhamsted Portrait Baroness Bowles of Berkhamsted
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Perhaps I may make an observation. Leaving general principles out of it, if you categorise all the legislation as secondary legislation and then deem that some of it can be amended only by Act of Parliament, you do not have to sort it all. You would have to sort it only when you wanted to amend it—and at that point you would look at the basis on which it was made.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble Baroness for that observation. Obviously, that is something that we would take into account. It perhaps touches on a question I did not answer from the noble Lord, Lord Pannick, with regard to Clause 5(3), where he queried the reference to the “intention of the modification”. Of course, what that makes clear is that this will need to be considered on a case-by-case basis.

Lord Pannick Portrait Lord Pannick
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Of course, “case-by-case basis” suggests lots of work for lawyers and a lot of legal uncertainty. I am grateful to the Minister and all those who spoke in the debate. There was, I think, widespread agreement in the debate—apart from the Minister—and from expert commentators that a legal status does need to be conferred in the Bill on retained EU law. How one confers the legal status is much more difficult than what legal status one confers. I would say that there is more than one way to skin a cat—but that may upset those who spoke in the previous debate.

I am grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord Goldsmith, for supporting the approach recommended by your Lordships’ Constitution Committee. But I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is also great force in the suggestion made by Professor Paul Craig that the Bill should confer a status of either primary or secondary legislation, dependent on the category of EU law from which the retained EU law derives. I say to the noble Lord, Lord Adonis, who asked about this, that Professor Craig is not advocating a process of allocation on a case-by-case basis; he is advocating that legal status should depend on the article of the EU treaty from which the retained EU law derives—a much more objective approach.

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Lord Goldsmith Portrait Lord Goldsmith
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I am grateful for the question, because it enables me to clarify that point. There are two sorts of principles. I was talking in answer to the noble Lord’s question last week about the principles which are contained in the charter itself. The charter says that it is a charter of rights and principles, and the principles there—it is not that easy to identify which are principles and which are not—are not actionable in themselves. They may become actionable, because as they are aspirational tools, they are then implemented into law and are actionable at that stage. The principles we are talking about here are different. These are the general principles of EU law, which are, for example, the principle of legal certainty, the principle of proportionality, and the principle of non-discrimination. These are different in that sense; they are general rather than specific principles, and they are actionable at the moment. That is why the Walker case I mentioned gives rise to a remedy, as did the other cases where the Supreme Court struck down tribunal fees as being disproportionately high for particular categories of workers.

That is why we believe it is important to keep this. It is one element of the architecture to retain rights. I remind noble Lords that the Prime Minister made it clear that the intention was that rights would continue the same the day after exit as the day before. To remove general principles in this way, and the ability to rely upon them, will fail to keep that promise. This amendment also—it has been referred to already—specifically proposes that the general principles of EU law should include those which are contained in Article 191 of the Treaty on the Functioning of the European Union. Those are environmental principles of huge importance: the precautionary principle, the principle of polluter pays and the principle for preventive action. Those principles and the others I referred to need to continue to operate to keep in place the rights that people enjoy at the moment.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I thank noble Lords for their brevity.

Amendment 40ZA, in the name of the noble Baroness, Lady Bowles, seeks to ensure that challenges to validity could continue on general principles of EU law grounds. I will address concerns raised on general principles in more detail later. First, Schedule 1 generally ends the ability to bring challenges on validity grounds to what will become retained EU law after we leave the EU. We recognise, however, that in some circumstances, individuals and businesses may be individually affected by an EU instrument. For example, a decision of an EU institution or body may be addressed directly to an individual or business. After exit, they would continue to be able to challenge such decisions—in so far as they apply in the EU—before the CJEU, and to have them annulled. Of course, the converted form of the decision would however remain in force within the UK as retained EU law.

The noble Lord, Lord Pannick, asked whether paragraph 1 of Schedule 1 would, after exit day, prevent a challenge to a provision of retained EU law by reference to common-law principles. I understand that the answer is no, it would not, and it is not intended to do so. I hope that that meets the position that he raised with me a moment ago.

Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not believe it would be right to hand them a new jurisdiction which asks them effectively to assume the role of the CJEU in this context. This amendment would effectively ask our courts to consider whether the EU acted incompatibly with the general principles when it made an EU instrument. Generally speaking, this is a function that we do not consider it appropriate to confer on domestic courts.

Therefore, although I appreciate the points raised by the noble Baroness, the amendment would undermine the Government’s stated policy of a clear exclusion of both validity challenges and general principle challenges provided for within Schedule 1. However, we recognise that there might be some limited circumstances in which it would be sensible to maintain the ability to challenge retained EU law on validity grounds. The Bill therefore contains a power set out in paragraph 1(2)(b) of Schedule 1, to which the noble Baroness alluded, which would enable the Minister to make regulations providing for a right of challenge in domestic law to the validity of retained EU law in specified circumstances.

Sub-paragraph (3) sets out that those regulations may provide that a challenge which would previously have proceeded against an EU institution may, after exit, proceed against a UK public authority, because of course there would be no EU institution against which it could be directed. I seek to reassure the noble Baroness that the word “may” is there as a precautionary term lest, in the context of trying to make such a regulatory power, it be perceived that there is no easily identifiable body against which the matter can be directed. However, the intent is that it should be possible to proceed against a public body in those circumstances.

Lord Beith Portrait Lord Beith (LD)
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Can the noble and learned Lord envisage the circumstances in which such regulations would be made? Will Ministers have to decide between now and exit day a category of matters for which such regulation is to be provided, or are we to await a case coming up which ought to have been the subject of regulations which are then made? That surely cannot be possible.

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect, it is a precautionary power and it is intended that, where the circumstances arise, the Minister will address himself to those circumstances and contemplate the making of appropriate regulations.

Lord Pannick Portrait Lord Pannick
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Perhaps I may suggest to the Minister a circumstance in which this might arise. The day after exit day the Court of Justice gives a judgment saying that a provision of EU law is invalid. Nevertheless, that provision will be part of retained EU law—it will be part of our law even though it has been abolished in the EU. That might be a circumstance in which the Minister wishes to act.

Lord Keen of Elie Portrait Lord Keen of Elie
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I fully acknowledge that that is most certainly a circumstance that could arise. Of course, one might address that circumstance by Parliament legislating to reflect the outcome of that post-Brexit decision. However, I fully acknowledge that, depending on the way in which one constructs the departure on exit day, one might find that what one has retained as EU law ceases to be EU law almost immediately after one has left the EU. I believe that that has been acknowledged on a number of occasions. Indeed, it could lead to the development of two parallel jurisprudences—one for retained EU law and one for EU law. That is an inevitable outcome of our decision to leave the EU but to retain in our domestic law that which was EU law at the point of our departure. I fully acknowledge that, but it might also be a circumstance in which potentially one would seek to exercise the exceptional regulatory power that is referred to.

Reference was made to Amendments 41 and 42, tabled by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Foulkes, which seek to retain indefinitely in domestic law rights of challenge based on the general principles of EU law. If agreed to, these amendments would empower domestic courts to quash administrative actions or secondary legislation or, indeed, even go as far as disapplying an Act of Parliament on the ground that it breaches one or more of the retained general principles of EU law—that could take place long after we have left the EU. That is why we have to have a point in time at which we have certainty as to the scope for such challenges, and that is reflected in the schedule.

As the noble and learned Lord, Lord Goldsmith, acknowledged, Amendment 41 would go even further. It seeks to set out an ostensibly broader definition of which general principles are to be retained under the Bill. In that context, he alluded to Article 191 of the TFEU, which deals with environmental issues. I take issue with him as to whether the polluter pays principle and the precautionary principle are both now accepted as general principles of EU law. I would suggest that there is considerable doubt as to whether the former, in particular, constitutes what is recognised in EU law as a general principle, so I have some difficulty with that amendment.

I come now to Amendment 63, also tabled by the noble Baroness, Lady Bowles. It is, I apprehend, intended to retain this right of challenge but solely for the principle of proportionality, as she indicated, and specifically including where retained EU law is to be treated as primary legislation. It would also appear to permit the possibility of a challenge on the basis of invalidity of EU law, as well as judicial review of such legislation. It is our position that the general principles of EU law, such as proportionality, non-retroactivity and fundamental rights, will be kept in our domestic law, but in order to assist in interpreting retained EU law and not to give rise to additional stand-alone rights. Whereas some general principles are now set out expressly in EU treaties, the general principles were those that were first recognised by the European Court of Justice. They are essentially judge-made and determined as principles on the basis of case law. It is those principles that we are dealing with.

I come back for a moment to Amendment 41, which goes beyond just the issue of proportionality. It would undermine the approach that we are seeking to take if we were to pursue it. In particular the inclusion of Article 191 in the amendment risks going further than the existing principles that are, as I say, set out in EU law and consequently in UK law today.

Lord Goldsmith Portrait Lord Goldsmith
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Leaving aside Article 191—we can argue about that and there is a decision that appears to demonstrate the point: the case of Artegodan, where the court appeared to be willing to extrapolate from the precautionary principle a general principle of EU law—does the Minister accept that, so far as the other general principles of EU law are concerned, to exclude them from the ability to found a cause of action and not just be an interpretative tool would be a diminution of the rights that people currently have and would include a diminution of many of the rights that the Government are saying are already protected under English law?

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Lord Keen of Elie Portrait Lord Keen of Elie
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The noble Baroness is confusing two distinct issues. The Bill is about the retention in domestic law of EU retained law at the point of Brexit. The Prime Minister was addressing our future relationship with the other 27 members of the EU in the context of our seeking to align in some areas and not align in others. This will be the subject of negotiation which is about to commence and will apply in agreeing a transitional period, and then our post-transitional period relationship with the other EU 27. They are two distinct issues.

On the noble and learned Lord’s observation about the general principles, these are retained as an interpretive tool. It may impact upon the matter of remedies but not on the issue of rights. One has to bear in mind that distinction.

Reference was made by the noble and learned Lord, Lord Wallace, to the case of Benkharbouche, which was a classic example of where the issue of rights had to be distinguished from the issue of remedies. There were rights arising under Article 6 of the convention but there was an also an issue as to whether or not certain principles arising by reference to the charter were also in play. I believe it was Article 46 of the charter that was referred to by Lord Sumption, who delivered the opinion of the court. The point was that while the rights could be identified by reference to the convention or the charter, the particular remedy there arose by reference to the charter. I acknowledge that that is the case.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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Is that not part of the point? An expectation has been built up by what has been said—that, on Brexit date plus one, people will be in the same position. The noble and learned Lord is admitting that they will not be in the same position because they may have rights but they will no longer necessarily have remedies.

Lord Keen of Elie Portrait Lord Keen of Elie
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They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave.

Lord Goldsmith Portrait Lord Goldsmith (Lab)
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Does the noble and learned Lord accept that Mr Walker would not have the same rights? Those are rights purely based upon EU general principles and nothing else. Does he not accept that in that case, at least, the rights would not be there?

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Lord Keen of Elie Portrait Lord Keen of Elie
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No, I do not accept that. I certainly do not accept that that is the position under reference to the Walker case. However, I am content to come back to the noble and learned Lord on that question on the Walker case but I do not accept that it falls in the way he indicates.

Perhaps I can make some progress. We remain of the view that after we cease to be a member of the EU there is a real risk of allowing general principle challenges to continue indefinitely, which is what these amendments would allow. Simply put, this would not be in keeping with our undertaking—our promise—to return sovereignty to this Parliament.

Of course we are aware of the concerns that have been raised, particularly about the impact on those whose cause of action precedes exit but who are unable, for whatever reason, to issue proceedings before some change takes effect. That is why we brought forward amendments on Report in the other place to provide reassurance that where a breach of the general principles occurred or gave rise to a potential claim before exit day—that is the important point—individuals and businesses will still have the opportunity to make certain claims based on the breach of the general principles of EU law for a period of three months after exit date. That period of three months after exit date is taken to mirror the period normally allowed in the context of applications for judicial review. That strikes a balance between ensuring that, on the one hand, individuals and businesses will still have the opportunity to bring these challenges and, on the other hand, delivering the result of the referendum and maintaining our parliamentary sovereignty.

While we believe that the compromises we have already made on the general principles of EU law have improved the Bill, the Government are looking again at these issues to see whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. That is because we understand the complexities of the issues that arise in the context of Schedule 1 and we are looking at those at present.

With that, I hope that the noble Baroness will see fit to withdraw her amendment.

Lord Keen of Elie Portrait Lord Keen of Elie
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As the noble and learned Lord rises to his feet I am reminded of his reference to whether paragraph 3 includes Acts of the Scottish Parliament passed before Brexit day and not within competence. If they are not within competence, they are not law.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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Perhaps I may explore that with the noble and learned Lord. The point I was making was that if the Acts were passed before Brexit day and they were challenged on the basis that the alleged incompetence was that they were not consistent with the general principles of EU law, would that challenge fail on Brexit day plus one, because it would mean that the court could no longer determine it?

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Lord Keen of Elie Portrait Lord Keen of Elie
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In the event that an Act of the Scottish Parliament was enacted beyond the competence of the Parliament, it would not and would never have been law. That is the position pursuant to Sections 28 and 29 of the Scotland Act 1998. I hope that that clarifies the point, but if I have misunderstood the noble and learned Lord—

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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Let me see if I can make it a bit clearer.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am quite prepared to discuss the point with the noble and learned Lord because it may be that we will look more closely at those provisions in the Scotland Act in the very near future.

Baroness Bowles of Berkhamsted Portrait Baroness Bowles of Berkhamsted
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I thank the noble and learned Lord for his response and all noble and noble and learned Lords who have spoken in this debate. I think that it has been confirmed that it is every bit as bad as I thought it was, and in fact I am not even sure that it is not worse. We now seem to have some kind of parallel jurisprudence which appears not to be actionable either under general principles or under common law, so we have created a kind of lacuna that cannot be approached. I also reject the fact that we would not be going on indefinitely applying general principles because the whole point is that we have the law as it is in the snapshot until such time as we change it. While I understand that one would not necessarily want to go in for a sudden wholesale redrafting of things, as amendments are necessary—especially if we avail ourselves of some of the mechanisms we have talked about where an Act of Parliament is going to be needed either because it is primary legislation or because we have put that on as a safeguard—these things are going to be revised and updated. I am still concerned and it is something that along with others we might want to return to on Report. However, for now, with the leave of the Committee I shall withdraw the amendment.

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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am obliged. Reference has been made to the Francovich principle. I am not sure there is such a principle, although there is the issue of Francovich damages, which arises from the case that was referred to in 1991. In order to put that into context, since 1991, and in the 20 years following, there have been 22—possibly up to 25—claims for Francovich damages in the UK courts. This is not some wide-ranging citizen or business right for the recovery of damages. There have been very few actual Francovich damages claims. I see the noble and learned Lord, Lord Goldsmith, shaking his head, but I invite him to study the case law.

Lord Goldsmith Portrait Lord Goldsmith
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I have no doubt about what the noble and learned Lord says. So why are they so worried about keeping it?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am just about to come on to that. I am obliged to the noble and learned Lord for his patience in that respect, and will endeavour to deal with matters as swiftly as I can, given the hour. The noble Lord, Lord Carlile, very correctly, pointed out the criteria that apply in determining whether or not there is a claim for Francovich damages: first, that the relevant provision of European Union law was intended to confer rights; secondly, that there has been a serious failure to implement European Union law; and thirdly, that there is a direct causal link between that failure and the loss complained of. I would not go so far as to suggest that Francovich damages are in some sense more generous than those available otherwise under the common law in this country, particularly those available in the context of judicial review. I have to point out to the noble Lord, Lord Davies, that damages are potentially available in a claim for judicial review.

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

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

Lord Pannick Portrait Lord Pannick
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My Lords—

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

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

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

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

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

Lord Goldsmith Portrait Lord Goldsmith
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Do I take it from that that the Minister will be bringing forward an amendment to correct this?

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Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble and learned Lord. As I say, we are addressing that issue, which we recognise, and therefore in time for Report we will be determining what our position is. I cannot go further at this stage and I am not going to commit to an amendment, but I make it perfectly clear that we recognise that there is a potential lacuna arising from the fact that while, where a claim has been made before Brexit date it is continued, where the claim has accrued but no claim has actually been made it would be lost by this process. We recognise that there is room for criticism of the legislation on that basis; I am absolutely clear about that.

In these circumstances, I recognise the force of the amendment proposed by the noble and learned Lord, Lord Goldsmith, and that proposed by the noble Lord, Lord Carlile, in order to address that issue. I would take issue with the scope of the amendment proposed by the noble Lord, Lord Davies, which goes well beyond that and would maintain some sort of claim for Francovich damages in a context quite unrelated to our departure from the EU. I underline that this would not be appropriate.

I mentioned earlier the limited number of cases in which Francovich damages have arisen. That in itself suggests that it might be a proportionate response to the amendments made by the noble and learned Lord and the noble Lord, Lord Carlile, to allow for claims that have accrued because they are potentially very few indeed. I recognise that entirely. I am not committing to an amendment at this stage but I will make the position clear by the time we reach Report. In the circumstances, I invite the noble Lord to withdraw his amendment.

Lord Pannick Portrait Lord Pannick
- Hansard - - - Excerpts

Before the Minister sits down and we all go to bed, I am very puzzled by his suggestion that there is currently a right to damages in judicial review such that Francovich damages do not add anything. In what circumstances is the Minister suggesting there is a right to damages in judicial review, other than in the very rare cases where you can prove misfeasance in public office?

Lord Keen of Elie Portrait Lord Keen of Elie
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That is one example of where a claim for damages would arise in the context of a judicial review. There are distinct circumstances in which Francovich damages will arise. The noble Lord will himself recognise that the circumstances in which you can actually establish a basis of claim for Francovich damages are even rarer than those instances in which you can establish one in domestic judicial review.

Lord Pannick Portrait Lord Pannick
- Hansard - - - Excerpts

I do not accept that. It is quite clear, I suggest, that damages under Francovich are provided in circumstances where you would not otherwise get damages because you cannot prove misfeasance but you can prove that the breach is sufficiently serious and that the law was intended to confer a right to damages. That is why I suggest to the Minister that paragraph 4 is taking away something of value.

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

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

European Union (Withdrawal) Bill Debate

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Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
The noble and learned Lord, Lord Wallace of Tankerness, said that this is a “no-brainer”. I have to confess that, at that moment, my noble friend Lord Beecham said to me that he thought the noble and learned Lord was describing the Government. However, I hope the Government do have brains and will find a way to amend this Bill so that we do not have to amend it once it is an Act, in order to make in law an assurance that has already been given.
Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I am pleased to be able—I use that term advisedly—to respond to the issues raised in the context of these amendments. Given the scope of the contributions, I will perhaps begin by touching on one or two points that have been made by noble Lords in the debate.

The noble Lord, Lord Foulkes, referred to the content of the joint report and quoted, among other things, the phrase,

“the Agreement should also establish”.

The noble and learned Lord, Lord Wallace of Tankerness, did likewise, and referred to the passage about the bestowal of rights that will come with the conclusion of the withdrawal agreement. The noble Lord, Lord Haskel, referred to Michel Barnier’s recent draft—quite accurately, if I may say so. The noble Baroness, Lady Ludford, pointed out that the European Parliament will have to agree to the terms of any withdrawal agreement. That is self-evident.

In other words, these matters are prospective. Why are they prospective? I do not want to be overly technical, and I do not believe that I will be, but we begin with the duality principle of our law. That means that we enter into international obligations at the level of international law and they have no direct impact on our domestic law. For example, the withdrawal agreement will be an international treaty entered into by the Executive. We then implement or bring the rights and obligations of that international treaty into domestic law by way of domestic legislation of this Parliament. That is the duality principle: you have international law and you have domestic law, and you can only have the domestic law once you have the international treaty, because it is from the international treaty rights and obligations that you allow the domestic rights and obligations to be brought into our domestic law. What we have at the present time is a joint report from December of last year. We acknowledge that.

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock
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It is not a treaty.

Lord Keen of Elie Portrait Lord Keen of Elie
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It is not yet a treaty, if I can anticipate the noble Lord, Lord Foulkes, because the position of the EU has been, quite rightly, that there is no agreement until everything is agreed. This has been a staged process. We believe that it is important that we were able to achieve the first stage and that we were able to achieve consensus. It is perhaps better to use the word “consensus” here rather than “agreement”, which can be confusing and sometimes misleading. We have achieved consensus in a number of important areas and, as we carry that forward, we proceed into the negotiation of what will be an international treaty.

As we have said before, once we have that international treaty, we can then draw down from the rights and obligations of that international treaty into domestic law by virtue of the fact that we will bring forward a withdrawal agreement Bill for scrutiny by this Parliament.

Lord Adonis Portrait Lord Adonis
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Can the noble and learned Lord explain to the House the difference between consensus and agreement?

Lord Keen of Elie Portrait Lord Keen of Elie
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One has to be careful in the matter of language. We are at one with regard to the first part of what we want to do in the context of withdrawal, but we do not yet have an agreement that is binding in law with the other EU 27. For example, going forward, and during the subsequent negotiations, the EU may come and go as to the terms of the joint report. Indeed, we saw some indications of that when it came out with its draft recently, where issue was taken with the way in which it expressed some aspects of the joint report, particularly with regard to Northern Ireland. I appreciate that, if you want to construe the term “consensus” in that way, it involves “agreement”. The reason why I am trying to move away from “agreement” is that some see the word and infer that there is some legally binding concept. That is not yet what we have. We have a joint report and, therefore, we have consensus. We are moving on to the overall negotiations on what will ultimately be an international treaty.

Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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We all hope that this agreement, or whatever word it is, is fixed soon, but it could be quite late. We may not have the withdrawal Bill until sometime next year and it could be that we are due to leave a month or so afterwards. This part of the Bill affects individuals more than businesses and they will not know whether they can go to court until it is fixed—we may not get Royal Assent until a month or two before we leave. Is that really a good way to treat individuals?

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect to the noble Baroness, businesses affect individuals, so it is not appropriate to try to draw a distinction between citizens’ rights and businesses in that context. The right to work involves the right to maintain a business in various countries; you cannot simply draw them apart in that way. As regards regards timing, of course we are concerned to ensure that we achieve a withdrawal agreement sooner rather than later. That is why these negotiations are under way. If perchance no agreement is achieved—and I am not aware of anyone who wishes this, although others will perhaps assert the contrary—we will have to look at how we then deal with matters in the absence of that international agreement.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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I am grateful to the noble and learned Lord and I hear what he is saying about the duality principle. Can he conceive of any circumstances in which the consensus reached between the United Kingdom and the European Union on the way in which we should treat EU citizens in the United Kingdom and United Kingdom citizens in the EU would not be taken forward or would fall apart? Can he see any circumstances where that might happen?

Lord Keen of Elie Portrait Lord Keen of Elie
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At the present time, no, but we are only now undertaking the detailed negotiation of the withdrawal agreement. It may be, for example, that the situation of UK citizens in Europe will alter during the course of those negotiations. It may be that the European Parliament will take a different view on how the rights and interests of those UK citizens in Europe should be approached. The noble and learned Lord will recall that, at an earlier stage, there were some suggestions that the rights of UK citizens in Europe would be limited to the member state in which they were resident at the time of exit. There are all sorts of possibilities and I am not going to indulge in an analysis of those possibilities—we are concerned with achieving certainty. We have achieved, by way of the joint report in December, an expression of joint opinion about where we are going, with regard not only to the rights of EU citizens in the United Kingdom but also to the rights of UK citizens in the EU. Of course we want to bring that in to the final withdrawal agreement, in order that we can then draw it down and implement it in domestic law.

Lord Cormack Portrait Lord Cormack
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My noble and learned friend is being very honest with the Committee, but in a way that gives me some cause for alarm. He has made it absolutely plain that, at the moment, there is no guarantee. Would it still be possible—I believe that it would—for this Government to give and enact in Parliament a guarantee such as this House voted for at the time of the debates on the Article 50 Bill?

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect, no, my Lords, because we are not in a position to guarantee that which has been arrived at in terms of the joint report. For example, we cannot by ourselves guarantee the rights of UK citizens in Europe. To try to dissect the joint report and say, “We’ll take one piece out and leave another piece in”, is not a way forward in the context of an ongoing international-level negotiation. It is not the way in which this Government would proceed in that context.

Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering
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My noble and learned friend is talking in the context of this being an international treaty that has to be transposed into UK law, but surely the amendment addresses the issue of the supremacy of European Union law, which citizens of the EU currently rely on when they live in this country. I thought that the purpose of the amendment was to make sure that those rights continued to exist and would be clarified. That is all that we asking in the Committee today.

Lord Keen of Elie Portrait Lord Keen of Elie
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With great respect to the noble Baroness, I think that I must respond to my noble friend Lady McIntosh.

Again, that argument rather misses the point, because what we have at the moment is a belief on the basis of the joint report that rights of EU citizens in the UK may be referred to the Court of Justice of the European Union after Brexit, but that is not finalised; it is not yet contained in an international treaty agreement.

Baroness Ludford Portrait Baroness Ludford
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We have always understood that we cannot unilaterally guarantee in the context of what is now happening an agreement of two parties. What was said from the very beginning, immediately after the referendum, was, “Give a unilateral guarantee and then we can with almost 100% certainty expect full reciprocity”. That was always what was suggested.

Baroness Ludford Portrait Baroness Ludford
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Yes, I would say to the sedentary noble Lord.

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect to the noble Baroness—who I think invited me to drop all the mire; I am not sure what I am supposed to do about that—the expectation of reciprocity is something that we hope to achieve during the negotiation, and that is ongoing.

Lord Keen of Elie Portrait Lord Keen of Elie
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Perhaps I may make a little progress.

The noble Baroness, Lady Ludford, also raised the question of settled status. We are intent on putting in place provision for settled status, which can be done pursuant to regulations made under the immigration legislation, in particular the Immigration Act 1971. We plan to open that application process on a voluntary basis in late 2018 in order that people may begin on it. The noble Baroness suggested that it was inappropriate to have an application process and went on to suggest a light-touch process. I suggest that we have an efficient and effective process from the perspective both of the applicant and of those who have to process it.

The noble Baroness also raised the question of arrivals during the implementation period and the need during the implementation period for those arrivals to register. Again, the final outcome as to the rights and obligations of those who arrive during the implementation period will be the subject of negotiation. We hope to take that forward in due course.

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Lord Wigley Portrait Lord Wigley
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I am grateful to the noble and learned Lord and I am following what he is saying. Is he in fact confirming that there will be two classes of citizen in Northern Ireland: those who hold Irish citizenship as well and will be able, if there is a border, to cross it totally freely and thus into the rest of Europe, and a second class of UK citizens in Northern Ireland who will not be able to do so?

Lord Keen of Elie Portrait Lord Keen of Elie
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No, my Lords, there will not be two classes of citizens. Let us take a simple example. If I hold USA citizenship and UK citizenship, I can pass between the UK and the USA because I am a citizen of both countries. If I am a citizen of the UK and a citizen of the Republic of Ireland, I can pass between the two countries because I am a citizen of each state. It is not a case of classification; it is simply a matter of status.

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock
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Will the noble and learned Lord clarify a point raised earlier by the noble Lord, Lord Wigley? What is the position of citizens in Gibraltar?

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Lord Keen of Elie Portrait Lord Keen of Elie
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Gibraltar is an overseas territory whose people hold UK citizenship. However, if they do not retain citizenship of another EU country after Brexit, they will not be EU citizens.

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock
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As I understand it, they can get a Spanish passport if they so wish, although I do not think that many of them do. Will they continue to be citizens of the United Kingdom and will they be eligible also to get EU citizenship?

Lord Keen of Elie Portrait Lord Keen of Elie
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This seems to confuse a number of different issues because the parallels are the same as those in the Republic of Ireland and Northern Ireland. If you are a UK citizen in Gibraltar and you are also entitled to apply for and be granted citizenship of Spain, you will then hold dual nationality or dual citizenship, and as a citizen of Spain, for as long as it remains a member state of the EU, you will enjoy the right to EU citizenship. It is no different from the position in Northern Ireland and the Republic of Ireland. In the same way, the noble Baroness, Lady Ludford—perhaps referring to something she may have read in the Daily Mail—talked about people applying for citizenship of Malta in order to ensure they can maintain EU citizenship. This is how it happens, but the fundamental point is that you cannot be a citizen of the EU unless you are a citizen of a member state. That is written into the treaties.

It may appear—and it will almost certainly appear to the Chief Whip—that I have digressed slightly from some of the amendments; he will be watching. I just seek to touch on some of them. I hope I covered in my opening remarks some of the points made. Amendments 160 and 170 were tabled by the noble Lord, Lord Adonis, and Amendment 202 by the noble Baroness, Lady Smith of Newnham. Unfortunately, she was not here to speak to it, but it was referred to. As I have indicated, at the end of the day, we will have to conclude the negotiations in respect of the withdrawal agreement treaty and then draw it down into our domestic law. Tying Clause 9 to a particular outcome is not going to assist that.

The noble Earl, Lord Clancarty, moved Amendment 210. Again, I hope I have set out the Government’s position on this. We appreciate what we have achieved by way of the joint report, and we go on to the detailed negotiations in the hope it will effectively mean that we can confirm in domestic law not only the rights of EU citizens in the United Kingdom, but the right of UK citizens in the EU.

The noble Lord, Lord Haskel, moved Amendment 211, which details a requirement to keep equivalence with the EU on rights and protections. Again, this is prospective. We are addressing it in the course of negotiations and we hope to achieve it in many respects. In my view and in the view of the Government, it would not be appropriate to bring this into our domestic law.

Finally, we have Amendments 49 and 52, which I hope I have gone some way to addressing so far. The Bill aims to provide a stable and certain domestic statute book on exit day. That is its point, irrespective of the result of the negotiations and of any final agreement with the EU. Of course, once we achieve a final agreement, we fully appreciate that we are going to have to draw it down into our domestic law. Parliament will have an opportunity to scrutinise it.

Lord Liddle Portrait Lord Liddle
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If, as I am sure we both do not want, the withdrawal agreement is not reached, what then happens to EU citizens’ rights? Do we not have the opportunity now to guarantee them, whatever the case?

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect, if there were no agreement, then it would be for this sovereign Parliament to decide what it was going to do about that in domestic law. We have already made clear expressions of intent as regards their status. There is an issue here of time and place. While I understand the expressions of concern that we have heard from across the House, this is not the time and this Bill is not the place for these amendments. In these circumstances, I invite noble Lords not to press them.

Lord Patten of Barnes Portrait Lord Patten of Barnes
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I wonder if I could put one point to the noble and learned Lord before he sits down. As ever, what he said was intellectually lucid and stimulating. I just want to jog back to what he said about consensus and agreement. It is a very important distinction and I am sure it will be interesting to all his ministerial colleagues in the Foreign and Commonwealth Office and to diplomats around the world. How does this distinction translate into other languages? Does he think that our interlocutors in Brussels regard what we appeared to accept in December as a consensus or as an agreement? Does he think that they will now be quite relaxed if we walk away from some of what was a consensus because it was not an agreement? I should like to be a little clearer on this. It is going to be very important as we go through this debate when we are told that things are part of a consensus and not part of an agreement. If, with his usual intellectual authority, he could explain that to naive, one-time make-believe diplomats like me, I should be grateful.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am most obliged to the noble Lord, if only for the compliment. As I sought to explain, we have the joint report and we have embraced it. We go on now to the next stage of negotiation. I used the term “consensus”, perhaps ill advisedly, to underline the point that we have not yet signed a binding agreement in international law—we have not yet achieved a treaty. We strive to achieve a treaty, and in striving to achieve that treaty we have in mind what we have already achieved in the joint report. But we acknowledge, as the EU itself has noted, that we have not yet placed that in the form of a treaty that is binding in international law. Until we do that, we do not draw it down into domestic law.

Lord Adonis Portrait Lord Adonis
- Hansard - - - Excerpts

Does the noble and learned Lord envisage that Her Majesty’s Government might resile from any of the commitments they gave in the consensus they reached at the end of last year?

Lord Keen of Elie Portrait Lord Keen of Elie
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I do not even imagine that Her Majesty’s Government would wish to do anything of the sort.

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Lord Adonis Portrait Lord Adonis
- Hansard - - - Excerpts

Before my noble friend concludes, does he share my concern about what the Minister said about the difference between “consensus” and “agreement”? Does he agree that that is quite a significant statement on the part of the Government in the course of this debate? The only point in making the distinction, as I understand it, is that the Government do not regard themselves as fully committed to the terms of the “agreement” of last December.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - -

It is unusual for me to intervene, but I feel that if the noble Lord is going to make statements, he should make them accurately. If he is going to represent what a Minister has said, he should do so accurately. The distinction I drew was between an agreement that was now binding in international law and an agreement that was not now binding in international law. I hope the noble Lord’s recollection coincides with mine. If it does not, could he perhaps consult Hansard?

Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock
- Hansard - - - Excerpts

It is a very interesting point, and the noble Lord, Lord Patten, highlighted it in his intervention. I wish that while he was speaking I had been able to translate “consensus” and “agreement” into Spanish, French, German, Italian, Portuguese, Welsh and so on to see whether there is a coincidence between one and the other. No doubt that is something that we can return to.

The Minister finished by saying that there is a time and a place, and that this is not the right time and not the right place for these amendments. There will be many more times and this will be the right place, and I look forward to speaking to the rights of European—

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Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - -

My Lords, I, too, am grateful to the noble Lord, Lord Beecham, for making that point. I would add only that I spoke as a Minister of this Government in expressing that view, because I spoke from the Dispatch Box when I made it clear. I can refer the noble and learned Lord, Lord Goldsmith, to Hansard in regard to that point. Of course, the origins of the remark may not have had quite the impact that it could otherwise have had if coming from another source—I do not seek to elaborate on that point.

Sometimes it comes ill to counsel to listen rather than to speak, but this is an occasion when it is entirely appropriate for me and for the Government to listen to what has been said. I am extremely grateful for the contributions of all noble Lords and noble and learned Lords with regard to the formulation of Clause 6(2). I refer to the formulation of the clause because I believe we have a common desire to ensure that we give appropriate, effective and clear guidance, in so far as it is required, to the judiciary regarding what is a relatively complex issue. Of course the noble and learned Lord, Lord Hope, pointed out that in the normal way one might delete Clause 6(2) and allow the courts to deal with this as they deal with other matters of comparative law, but he went on to point out—quite correctly, I submit—that here we are dealing with a very particular situation where guidance may be needed. I am conscious of the way in which the various amendments have evolved.

The noble and learned Lord, Lord Neuberger, also referred to Clause 6(4) and the issue of whether and when the Supreme Court might decide whether to adhere to precedents in this context. I bow to the far greater experience of the noble and learned Lords, Lord Neuberger and Lord Hope, who sat in the UK Supreme Court. My limited experience is that, where I attempted to persuade them to adhere or not to adhere to a particular precedent, they had no difficulty in making their own minds up.

Be that as it may, I recognise the force of the points that have been made. They have come from beyond this House as well because, as noble Lords will be aware, the Constitution Committee also made some recommendations about this. Indeed, its early recommendation in March 2017 was,

“the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts ‘may have regard to’ the case law of the Court of Justice (and we stress that it should be optional)”.

Indeed, we were having regard to that as we looked at Clause 6(2).

A point was made about the distinction between “may” and “must” in the amendment of the noble Lord, Lord Pannick. It occurs to me that, where he uses “must”, he goes on in his amendment at (2C) to qualify the context in which that word is used, and there may not be a vast gulf between “may” and “must” in the context of the two amendments that have been tabled. Of course, that which was recommended by the Law Society of Scotland has the merit of some simplicity and embraces the same point.

At this stage I would add only that the Bingham Centre looked at the current recommendations of the Constitution Committee that lie behind the amendment in the name of the noble Lord, Lord Pannick, and raised concerns about a number of aspects of the formulation put forward by the committee. However, I make it clear that we greatly appreciate the contributions that have been made to this part of the Committee’s debate. We will go away and consider the various formulations, and I believe it would be sensible for the Government to engage with various interested parties once we have come to a view about how we can properly express what we all understand is necessary policy guidance in the context of this exceptional step. Against that background, I invite noble Lords to consider not pressing their amendments at this stage.

Baroness Ludford Portrait Baroness Ludford
- Hansard - - - Excerpts

I know I will not be popular by holding things up, but the Minister was specifically asked if he could explain the reference to,

“another EU entity or the EU”,

in Clause 6(2). I do not know whether he feels he could do that. Does it have any reference to the European Commission? The Prime Minister said we would have a binding commitment to follow EU state aid and competition law, and I wondered if it had any relevance in that context.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am not going to elaborate at this stage because, as I say, the Government are going to go away and consider the proposals for an amendment to Clause 6(2).

Lord Pannick Portrait Lord Pannick
- Hansard - - - Excerpts

I am very grateful to the Minister for that encouraging response, and I am grateful to the noble Lords and noble and learned Lords who have spoken in this debate.

On a matter of detail, the noble Lord, Lord Adonis, asked about new subsection (2B) in Amendment 56, giving guidance to the judges to look to the relevance of an EU agreement. The noble Lord asked how that would work. I shall give him an example. If the judge is seeking to interpret a provision of retained EU law, relating to, say, medicinal products; if the Court of Justice after exit day pronounces on a regulation which has become part of retained EU law, and if the withdrawal agreement has said that there will be close regulatory alignment between the EU and the United Kingdom in that particular area, then the judge would be encouraged to pay close regard to what the Court of Justice had said about the meaning of the regulation. Our court would still be in control but it would pay particular regard—that is the whole point of new subsection (2B).

There is widespread agreement around the House that the wording of Clause 6(2) is unsatisfactory and that Parliament needs to give as much guidance as possible to judges in this context to protect them from being seen to be required to take policy decisions, which would undermine confidence in the rule of law. The Government and Parliament would be very unwise to reject, in particular, the concerns expressed by the noble and learned Lord, Lord Neuberger of Abbotsbury. It is much more difficult to identify precisely what should be put in place of Clause 6(2). I am encouraged by what the Minister said—that the Government are listening and considering this matter. I am sure that all noble Lords who have spoken would be happy to contribute to the discussions that will take place before Report. I hope that, on Report, the Government will bring forward amendments to Clause 6(2).

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018

(6 years ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-IX Ninth marshalled list for Committee (PDF, 218KB) - (19 Mar 2018)
Lord Foulkes of Cumnock Portrait Lord Foulkes of Cumnock
- Hansard - - - Excerpts

No, I have it absolutely right. I know that that is precisely what it is. I have said that on previous occasions. But, with respect, it was the couple of speeches that the noble Lord, Lord Thomas, made earlier on that moved me in the Government’s direction.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
- Hansard - -

My Lords, I am obliged for all the contributions at this stage of the debate. I appreciate, as do other Members of the House, that when I move the government amendment to Clause 11, we will embrace a debate about the consequences of that amended clause and the significant change it makes to the way in which we are going to deal with, among other things, devolved competences. But as the noble and learned Lord, Lord Hope, observed, his amendments are consequential in a sense on what is going to happen with regard to Clause 11. In that context, I point out that we had already indicated our intention to move the amendment to Clause 11 and then withdraw it, in order that the consequences for the schedules to the Bill can be addressed more properly when we reach Report. However, there is a more fundamental issue underlying this, which has been highlighted by the use of the terms “consult” and “consent”. It is really rather fundamental. Because these are probing amendments, I will just outline the Government’s thinking with regard to this area of the Bill and how it will work. I am sorry if I am going to appear somewhat repetitive about some matters of history that have been touched upon already, but perhaps your Lordships could bear with me, if but for a moment.

In 1972, the UK Parliament of course transferred certain competences to the EU. Having done so, it limited its competence to legislate for the United Kingdom. When it came to the Scotland Act 1998 and the Government of Wales Act 2006, that Brussels competence, as I will term it, had already gone. When it came to considering the scope of the divorce settlement, the matter of the powers held by the European Union in Brussels was not in scope for consideration as part of devolution. They had gone, by virtue of an international treaty implemented in domestic law pursuant to the ECA 1972. The devolved settlement was determined by reference to the competence that remained in Westminster in 1998 and in 2006.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am going to elaborate on what happens to the competences in Europe. I wonder whether the noble Baroness will bear with me just for a moment.

Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
- Hansard - - - Excerpts

But I wanted to challenge what the Minister just said. The competences were not actually removed from us. We agreed to operate within the framework, but the idea that we actually gave up those competences in the way described would perhaps not be accepted, as such. We agreed that the EU had rights to make laws in certain areas, but that is not the same as saying, “This is no longer our responsibility”.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - -

With respect, pursuant to our international treaty obligations, we bound ourselves at the level of international law to allow the EU to exercise competence in areas where previously the UK Parliament would have exercised it. That was then implemented in domestic law by virtue of the 1972 Act. Of course a sovereign Parliament is always able to repeal the 1972 Act, as it is now doing, but so long as it remained in place, and so long as we remained party to the relevant treaty—which became treaties—we were bound in that context. I do not entirely agree with the analysis, but I do not believe it is material for the present purposes, if I may respectfully say so.

Once Brussels had certain competences, it then exercised them. It was important that Brussels should exercise them in one area in particular, which was the development of the EU single market, as no one else could have exercised jurisdiction over a single market in the EU. The idea that 12—now 28—individual jurisdictions could have maintained the single market is self-evidently untenable, so Brussels exercised that jurisdiction, for very good reason. When we leave the EU, we will find ourselves in the position where we want to maintain an internal single market in the United Kingdom; the noble Lord, Lord Foulkes, referred to that, while the noble and learned Lord, Lord Hope, said we are looking forward to the internal market in the United Kingdom. We have to bear that in mind. What Parliament is in a position to legislate for a UK single market? The answer to that is the Parliament that has jurisdiction for the whole United Kingdom. I will come on to the issue of devolved competence in a moment, but generally speaking if you are going to maintain a single market you need a legislative power that is able to do that for the single market.

Lest anyone interrupt just yet, I add that of course by their very nature the devolved Administrations, parliaments and assemblies have responsibility for devolved powers in their respective nations. We respect that, of course, but there is an issue here that has not yet been mentioned. We identified, on the basis of analysis that was carried out with the devolved Administrations, that there were some 153 areas of competence where—

Lord McConnell of Glenscorrodale Portrait Lord McConnell of Glenscorrodale
- Hansard - - - Excerpts

Before the Minister moves on to the detail of those competences, I want to challenge the analysis that he has given about the comparison between the UK single market and the EU single market. No one would have suggested at any time in the last 26 years that the relationship between the United Kingdom and the EU single market, and the decision-making around the EU single market, would have been such that the decision-making on the EU single market would have been left solely to the European Parliament and the European Commission. It was not. The decision-making around the EU single market was done primarily by the Council of Ministers, and in the Council of Ministers some aspects of that single market were determined by absolute consent, where the UK had a veto, while some areas were determined by qualified majority voting. We cannot replicate that arrangement with one that leaves the sole decision-making power after consultation, without consent, with the UK Parliament and the UK Government in relation to areas where currently the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly would have legislative competence.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - -

I do not entirely agree with the noble Lord’s analysis but for the present purposes I am not sure that it is particularly relevant. What is relevant is this, if I can continue: we have identified about 153 areas in which, upon our leaving the EU, competences will return and touch upon areas of devolved competence. These are areas that the devolved parliaments and assemblies previously had no engagement with because they lay in Brussels, but they are coming back and touching upon these areas of devolved competence and we recognise that.

However, some of these areas of competence are critical to the maintenance of a single market in the United Kingdom, as I will illustrate in a moment. Those therefore had to be addressed. We did that by engaging with the devolved Administrations and assemblies in the context of the Joint Ministerial Committee negotiations. I take the point made by the noble Baroness, Lady Hayter: there may be criticisms of that process but I respectfully suggest that that is not for this Bill. It is important to notice the achievements made by that committee in this context. In particular, noble Lords may have received a copy of the communiqué of 16 October 2017 from the Joint Ministerial Committee, which was attended by Mark Drakeford, a Cabinet Secretary in Wales, and Mr Russell, a Minister from the Scottish Government, among others, including senior civil servants from Northern Ireland in the absence of their Executive. I shall quote briefly from it, although some aspects are referred to in some of the proposed amendments:

“Ministers noted the positive progress being made on consideration of common frameworks and agreed the principles that will underpin that work”.


The definition of those principles includes the line:

“A framework will set out a common UK, or GB, approach and how it will be operated and governed”.


Then there is a list of principles:

“Common frameworks will be established where they are necessary in order to … enable the functioning of the UK internal market”—


for example, to,

“ensure compliance with international obligations; ensure the UK can negotiate, enter into and implement new trade agreements and international treaties; enable the management of common resources; administer and provide access to justice in cases with a cross-border element; safeguard the security of the”,

United Kingdom.

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Lord Wigley Portrait Lord Wigley
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Will the noble and learned Lord give way?

Lord Keen of Elie Portrait Lord Keen of Elie
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No, perhaps I can finish this point. I am just trying to explain why in these 24 areas it has been identified as very material that we should retain and then develop frameworks.

Lord Wigley Portrait Lord Wigley
- Hansard - - - Excerpts

I just wanted to intervene on this very point about pesticides. The Minister will be aware that the Welsh Government did in fact legislate on the question of genetically modified crops, and it was forecast that the roof would fall in. It did not; it was quite possible to have a different regime in Wales from that in England. As he addresses the rest of the points that have been raised, will he tell us how the regime will be allowed or not allowed to work in the context of agricultural support? Sheep farmers may well want and be entitled to get support from the Welsh Government. The Welsh Government may want to give them that support but, if it is argued that that distorts the UK market, they would not be able to do so. That is the sort of issue that causes concern.

Lord Keen of Elie Portrait Lord Keen of Elie
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As regards agricultural support, that is another subspecies of agriculture. I am dealing with those matters that fall within the 24 identified areas where we find it necessary to retain and operate the single internal market. Not all areas within those 24 competencies are going to have to be retained for the purposes of that market. There are areas which we will devolve.

Lord Purvis of Tweed Portrait Lord Purvis of Tweed
- Hansard - - - Excerpts

The Minister is making a very strong case for how a single market can operate effectively. Does he not believe that the United Kingdom could operate under a frictionless trading or regulatory arrangement with managed divergence across the four nations?

Lord Keen of Elie Portrait Lord Keen of Elie
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That is not what is in contemplation, and that is why I am trying to explain the Government’s thinking with regard to maintaining effectively a single market, not frictionless borders between nations within the United Kingdom, which is a different issue altogether and one that does arise in a different context.

Lord McConnell of Glenscorrodale Portrait Lord McConnell of Glenscorrodale
- Hansard - - - Excerpts

I will not take this opportunity to contest some of the points that have been made about, for example, fertilisers, although I think there is a debate to be had about the way in which the Government describe that issue. It is not helpful to the heat generated around this debate when the examples the Government give for the need to retain the power imply that decisions that would be made in Scotland or Wales would be stupid. The Government need to think hard about the fact that when they describe the need for these single market frameworks in the UK, they should do so in a positive way in terms of the UK having regulations that work together.

On the substantive point about the frameworks, the issue is not the list of 24, but how they will be agreed and who will have the ultimate decision-making power. It is not about what is or is not on the list. That is a matter for negotiation and determination within the existing settlements. The issue here is who agrees the frameworks, how they are agreed and who ultimately has the power to veto them or otherwise. That is the substantive issue I would ask the Minister to address.

Lord Keen of Elie Portrait Lord Keen of Elie
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I wholly reject the implication that we are suggesting that any of the devolved Administrations are going to proceed to legislate, with any of the competencies returned to them, in a way that would be regarded as stupid or unacceptable. That is a most unfortunate gloss to put on the matter. It is, however, very helpful that the noble Lord, Lord McConnell of Glenscorrodale, has raised the question of how we are going to deal with the issue in this context. The framework agreements have been the subject of ongoing negotiation among all of the Administrations, but in order to achieve that it is necessary to retain competencies in those areas so that there is not the prospect of legislation within the devolved areas which impacts upon areas outwith their competence. To give a simple example in that context, the Scottish Government are entitled to exercise devolved competence and powers within Scotland for the Scottish people, but if we allow all of the additional competencies to go back to the Scottish Government and they legislate in an area such as food labelling, that impacts on the people not only of Scotland but of England, Wales and Northern Ireland. There is therefore, in a sense, a veto over proposals for the internal market, with one devolved Administration saying, “No, we don’t like your proposals on food labelling. We know everybody else likes them but we’ve decided we don’t like them, we’re not going to consent to them, so you can’t have them.” That is the problem that we want to ensure does not arise.

Coming more particularly to the point that was made about how this is decided, we do ring-fence, as it were, the 24 competencies—or elements of them—that have been identified following the consultation process with the devolved Administrations and which are reflected in the principles that I quoted from the Joint Ministerial Committee on 16 October last year. Then, we have to formulate framework agreements, essentially, in each of these areas for the United Kingdom.

Taking up the noble Lord’s point on how we are going to implement those, we will do so by way of primary legislation. And where do we find ourselves? Back in the relevant devolved legislation, which says that we will not normally legislate in respect of these devolved areas except with the agreement of the relevant devolved Government. So the relevant safeguard is exactly the same as the one that exists at the present time. What we propose will not intrude on the devolved competence in Scotland, Wales or indeed Northern Ireland. It retains 24 areas that are coming back from the European Union in order that we can work out what is required for the purposes of maintaining a single UK market. However, what would alter the devolved competencies quite fundamentally would be a provision that said that we could retain those areas of competence only with the consent of each of the devolved Administrations. That would give them a veto over matters that went beyond their present devolved competence and a veto over matters that impacted on England, Wales, Northern Ireland or Scotland, depending upon who was doing it. That is why we have set out matters in the way that we have. When we come on to the amendment to Clause 11 in due course, I hope that, having essentially flipped Clause 11, we can reflect on the great progress that we have made to date in these areas. It is in that context that I simply invite the noble and learned Lord to withdraw his amendment.

We will return to these matters under reference to the government amendments but I wanted to set out, I hope with a reasonable degree of clarity, the Government’s thinking in this area. This is not, with respect, a power grab—on the contrary: if we consult, if we agree and if we achieve this, there is no question of a power grab. It is certainly not a derogation from devolved competence. A great deal of competence will be laid on the devolved Administrations, because so many of these competencies coming back from the EU, and under the amended Clause 11, are going straight to the devolved Parliaments and Assemblies.

Lord Forsyth of Drumlean Portrait Lord Forsyth of Drumlean (Con)
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Before the noble and learned Lord sits down, may I just tempt him? He has given a very clear exposition of the Government’s position and why it is in the interests of the devolved Administrations and the United Kingdom as a whole to proceed in the manner that the Government describe. He has also talked about the great efforts that have been made by the officials and the work that has been done. Why, then, do we have such opposition, in particular from the Scottish Administration?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am not going to rehearse the rhetoric that has been used by some members of the Scottish Government to feed populism. Terms such as “power grab” may have their place, but they do not have a place in the context of our looking at this legislation. Of course, it has been asserted that consultation is not enough—even though it may lead to agreement—and that there has to be consent and only consent. But if it is consent, that is, let us remember, a very material change to the devolved settlements. That will result in the devolved Parliaments and Governments being able effectively to veto matters that impact upon those outwith their area of devolved competence.

Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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The Minister used a phrase—which is used also either in the Explanatory Note or in a letter, I cannot remember which—about the retention of this for the purpose of the internal market. It might be helpful if that wording appeared on the face of the Bill.

Lord Keen of Elie Portrait Lord Keen of Elie
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I note that comment. The noble Baroness will appreciate that the amendment to Clause 11, which I will move in due course, seeks to ring-fence these powers to ensure that they are limited. Indeed, the noble and learned Lord, Lord Wallace, has also tabled an amendment regarding a sunset clause in that context. It is perfectly clear from the proposed amendment to Clause 11 that they are meant to have a very limited function—but I note what the noble Baroness said and I will take it forward.

Lord Wigley Portrait Lord Wigley
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Does the Minister not realise that the Labour Government in Cardiff feel as strongly as the SNP Government in Scotland about this matter? This is not a matter of party politics; it is a question of where power lies. That is why the term “power grab” has arisen. When he says how outrageous it would be if Scotland, Wales or Northern Ireland had a veto, does he not realise that the structure that he is advocating gives England a veto? It gives Westminster a veto; that is what is causing so much trouble.

Lord Keen of Elie Portrait Lord Keen of Elie
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No. With great respect—

Lord Keen of Elie Portrait Lord Keen of Elie
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One moment. I am terribly sorry, Archbishop, but I must reply to that. This does not give England a veto. Essentially, England has no voice. This is the United Kingdom Parliament: it legislates for the United Kingdom.

Lord Sentamu Portrait The Archbishop of York
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The point I was going to make is exactly the same. As I have listened to the debate, it seems to me that the issue is probably what the noble Lord, Lord Hennessy, tried to address. When we leave the EU, the state of the United Kingdom and Northern Ireland will still be the United Kingdom and Northern Ireland. Therefore, there are areas that are for all four nations and others that are just for one nation. Devolution was a good thing, but it does not mean that powers that affect other nations can simply be devolved. I have listened again and again, and I think the point is that, of all the powers that are coming back, 23 have been identified which, if they were simply handed over without clear legislation, would leave us in a real mess. There would be no coherence, no sense that this would be the United Kingdom; it would be something else. So may I plead with those who come from nations with devolved Governments to realise that, for the benefit of the whole of the United Kingdom and Northern Ireland, there are some areas that affect all of us together, not separately, and that those need to be retained? Of course there could be negotiations and conversations—but I get a little concerned that the message is not getting through. This is not grabbing power: some areas are returning to the United Kingdom and we must sort out which bits really need to go straight to the devolved Administrations. The 23 areas that we have heard about require very careful consideration; otherwise some might think that leaving the EU equals independence for them.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am not going to indulge in party politics at this stage; I do not think that that is necessary. We all know the ultimate objective of the Scottish National Party. It is not to have a United Kingdom; it is to break up the United Kingdom and have an independent Scotland. Although Scottish nationalists talk about all these powers coming back from the EU, let us remember that they do not want them. If they get them, they want to give them back to Brussels, because they want Scotland, as an independent country, to remain in the EU—and, if it leaves, they want it to join EFTA and the single market. Therefore they will return all the powers they are talking about if they get their ultimate aim.

Lord Morris of Aberavon Portrait Lord Morris of Aberavon
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The noble and learned Lord has distinguished between “consult” and “consent”, and has described consent as a veto. Does he not accept that over the years the normal use of “consent” by both the Scottish Parliament and the National Assembly has been exercised responsibly, and that there is no basis for that fear? How would he define the word “consult”? What does it mean?

Lord Keen of Elie Portrait Lord Keen of Elie
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Consultation has been going on in the Joint Ministerial Committees on a regular basis since October of last year. As regards respecting the constitutional settlement on devolution, I entirely agree with the noble and learned Lord—with one qualification. A convention has arisen out of the memorandum of understanding between the Scottish Government and the UK Government about how we ensure that legislation put before the Scottish Parliament is competent. That convention has operated since 1999 and involves an exchange of a note of competence. Prior to a Bill being introduced to the Scottish Parliament, a copy is passed to my office—the Office of the Advocate-General for Scotland. That is always done.

I then confer with the Lord Advocate and his officials—the noble and learned Lord, Lord Wallace, will be familiar with this—and we iron out any differences and come to a view on what is competent and what is not, and consequently these matters are resolved. For the first time in nearly 20 years, that convention was departed from by the Scottish Government in respect of their EU Continuity Bill, which I first heard about after it was introduced to the Scottish Parliament. They did, however, give it to the Presiding Officer of the Scottish Parliament in time for him to take legal advice. Therefore, while I accept the generality of the point the noble and learned Lord made, particular exceptions have arisen very recently.

Lord McConnell of Glenscorrodale Portrait Lord McConnell of Glenscorrodale
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I was the Minister who negotiated the memorandum of understanding. I think I am the only Minister involved in the negotiation at the time who serves in your Lordships’ House. I agree that the Sewel convention and the arrangements for considering the competence of legislation have worked very well. That concerns the point I made earlier—two debates ago, I think—about the clarity of the legislation and of the memorandum of understanding, which have worked well over many years. I am encouraged by the Minister’s comment that these frameworks would all be subject to the Sewel convention. It would certainly be very helpful for the debate that we are about to have on Clause 11 for the Minister to say that, if these 24 areas are indeed the final 24 areas that are agreed for common frameworks, in each of the 24 areas the establishment of the common frameworks would be subject to the Sewel convention, as I think he hinted at a few minutes ago.

Lord Keen of Elie Portrait Lord Keen of Elie
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In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.

I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford
- Hansard - - - Excerpts

As I understand what the Minister is saying, ultimately everything has to be settled by primary legislation, so there will be a single market in the United Kingdom that is settled by primary legislation—for which legislative consent will be sought and no doubt given. What we are talking about is an interim period when Ministers take powers to themselves. Over a temporary period they will in effect dictate what the framework agreement will be until there is a final agreement in a number of years—that is what I understand the Minister to say.

Lord Keen of Elie Portrait Lord Keen of Elie
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With great respect, I do not think the noble Lord, Lord Thomas, has understood what I said. It is not a case of us dictating anything to the devolved Administrations; it is a case of ring-fencing these limited competences until we have reached agreement with the devolved Administrations as to what the framework agreements will be. They will then be put forward for the purpose of legislative consideration in the usual way. But it is not suggested that we are going to start regulating agriculture in Scotland in the meantime—that is not what is comprehended by this at all. I do not know whether I asked this earlier, but will the noble and learned Lord withdraw his amendment so that I can sit down again?

Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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Before the Minister does, how long will this ring-fence last? I believe the Barnett formula was temporary; how long does the Minister envisage the ring-fence will last before there is a proper legislative framework?

Lord Keen of Elie Portrait Lord Keen of Elie
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It will last until we have managed to implement all of the framework agreement. That will be a finite period—there is no question about that. Indeed, if the noble Lord looks at the proposed amendment to Clause 11, he will see that there are various checks and balances, including the requirement that Ministers report to Parliament if they retain the powers for any longer. So that is already addressed.

Lord Hope of Craighead Portrait Lord Hope of Craighead
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My Lords, this debate has ranged a good deal wider than was necessary for the Minister to deal with my points on this group of amendments. With respect to him, he has not given me the kind of reassurance that the noble Baroness, Lady Goldie, gave me on earlier groups. My point is that this very disparate group contains a number of points that I raised with regard to Schedules 2 and 8, which need to be reconsidered in the light of the reformed Clause 11. A simple example is on page 56, where there is a reference to a fetter on the power to,

“make, confirm or approve subordinate legislation”,

which extends to the wording of Section 57(4) of the Scotland Act as in the Bill. However, that section is reworded by the proposed new Clause 11.

Lord Keen of Elie Portrait Lord Keen of Elie
- Hansard - -

I just remind the noble and learned Lord that I said that when we come to Clause 11, we will move and withdraw the amendment. We appreciate that although we want Clause 11 in its present form, to put it forward in a form that covers all these matters we will have to address the impact it has on Schedule 2 in these contexts.

Lord Hope of Craighead Portrait Lord Hope of Craighead
- Hansard - - - Excerpts

I am grateful for that. Not every one of my amendments is a Clause 11 point—there are other points of detail which need to be looked at. If the Minister would be kind enough just to say that these will be looked at, I will be happy to withdraw my amendment. Can he give me that assurance?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am content to indicate that we will look at these points.

Lord Hope of Craighead Portrait Lord Hope of Craighead
- Hansard - - - Excerpts

On that basis, I am happy to beg leave to withdraw Amendment 274.

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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I will respond briefly, without repeating what I said on the immediately preceding group, but this raises essentially the same issue. On these provisions, the circumstances in which consent applies to the powers—which are the obverse of some of the others—are those where the devolved Ministers could use powers in ways that have implications outside of their devolved jurisdiction, for example when making provision regarding the World Trade Organization obligations. That is why we have framed it in this way, but it raises the wider point made by the noble and learned Lord and I appreciate that that might be addressed in more detail when we come to Clause 11 and the government amendments. I wonder if, in these circumstances, the noble and learned Lord will, at this stage, withdraw his amendments.

Lord Hope of Craighead Portrait Lord Hope of Craighead
- Hansard - - - Excerpts

I am glad we have not provoked a longer debate on this group of amendments. There is a reason for being concerned about this; the provision I am concerned about deals specifically with something within competence—in other words, it deals with regulations made for the purpose of preventing or remedying any breach of the WTO agreement. It does not deal with the WTO agreement itself; it simply exercises the power given under paragraph 7(2)(b) of Schedule 5 to the Scotland Act 1998 to deal with these matters domestically. Since it is within competence under the Scotland Act, it is hard to see why the position should be regulated in the way proposed. However, I have listened to what the Minister has said and—on the understanding that we can look at all this again when we get to the revised formula for Clause 11—I am happy to withdraw this amendment.

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018

(6 years ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-IX Ninth marshalled list for Committee (PDF, 218KB) - (19 Mar 2018)
Moved by
302A: Clause 11, page 7, line 25, leave out subsections (1) to (3) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for the Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 30A(1)”.(2) After section 30 of that Act (legislative competence: supplementary) insert—“30A Legislative competence: restriction relating to retained EU law(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Scottish Parliament.(3) In addition—(a) a Minister of the Crown must (unless the regulations only relate to a revocation of a specification) consult the Scottish Ministers before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, and(b) see paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under this section).”(3) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for the National Assembly for Wales to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 109A(1)”.(3A) After section 109 of that Act (legislative competence: supplementary) insert—“109A Legislative competence: restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown. (2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the Assembly’s legislative competence.(3) In addition—(a) a Minister of the Crown must (unless the regulations only relate to a revocation of a specification) consult the Welsh Ministers before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, and(b) see section 157ZA (duty to make explanatory statement about regulations under this section). (4) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.”(3B) In section 6(2)(d) of the Northern Ireland Act 1998 (no competence for the Northern Ireland Assembly to legislate incompatibly with EU law) for “incompatible with EU law” substitute “in breach of the restriction in section 6A(1)”.(3C) After section 6 of that Act (legislative competence) insert—“6A Restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Assembly.(3) In addition—(a) a Minister of the Crown must (unless the regulations only relate to a revocation of a specification) consult the relevant Northern Ireland department before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, and(b) see section 96A (duty to make explanatory statement about regulations under this section).(4) In subsection (3)(a) “relevant Northern Ireland department” means such Northern Ireland department as the Minister concerned considers appropriate.(5) Regulations under this section may include such supplementary, incidental, consequential, transitional, transitory or saving provision as the Minister making them considers appropriate.””
Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I shall speak also to the other government amendments in this group. We have put forward these amendments to facilitate scrutiny of the Government’s current position on Clause 11. They reflect the status of our discussions with the devolved Administrations, and noble Lords will be aware that our discussions with the Scottish and Welsh Governments are continuing. We remain convinced that this Bill is the right vehicle for providing legal certainty across the UK and that we should reach agreement with the Scottish and Welsh Governments. As such, the Government do not seek a vote on these amendments today and we will withdraw or not move them at the conclusion of the debate, but we will reflect seriously on the points made and incorporate them into our discussions.

The Government have been clear that the Bill is about continuity, certainty and control. That applies equally and without exception to people and businesses across all parts of the United Kingdom. Our approach has always been guided by two principal aims; namely, that we have a fully functioning statute book on exit, and that there are no new barriers to people living and doing business across the United Kingdom. These amendments have been tabled, in line with our commitment made in the other place, to address the concerns raised regarding the current Clause 11. They represent a substantial movement from our original position and reflect the sincerity of our commitment to finding a mutually agreeable position.

We have had lengthy discussions on this issue at official and ministerial level, including at the Joint Ministerial Committee. Noble Lords will well know that the Scottish and Welsh Governments have not yet agreed these amendments, but we will continue to work with them to try to find a way through. I am confident that all parties to this discussion are invested in trying to reach that agreement, as was demonstrated by the constructive tone set at the JMC by the Prime Minister and the First Ministers. This is a crucial piece of legislation in the national interest. It must work for all parts of the United Kingdom and we are sincere in our hope that we will find a way for us all to come together in support of it.

Noble Lords spoke at length at Second Reading and in previous debates of the importance of the “presumption of devolution” and have debated the principle that if there is not a good reason for a matter to be held in common, it should be devolved. That is what these amendments aim to deliver. They would take the existing Clause 11 and effectively turn it on its head. Their effect is that by default on exit day any decision-making powers currently held by the EU in areas that are otherwise devolved would pass directly to our devolved institutions without first being diverted through Westminster. The amendments then give UK Ministers powers to apply targeted and temporary limitations on competence to modify retained EU law, which would in essence have the effect of maintaining existing UK frameworks. We envisage that they will be used in those specific areas where we have identified that a future framework for the United Kingdom may be needed. That would ensure that in those areas the current common approaches established by EU law will continue to apply until we—the United Kingdom Government and the devolved Administrations—can together determine the form that the new bespoke UK framework will take, if one is ultimately required for the benefit of both our communities and our businesses.

I should be clear that the limits that would be applied by these powers are not new limits or constraints. They would merely preserve existing competence in relation to EU law after exit as it stood in relation to EU law immediately prior to exit. Therefore any decision that the devolved institutions could take before exit day will continue to be a decision that they can take after exit day in areas where they have exercised their powers. There is no encroachment into existing devolved areas, and of course in areas where we have not exercised these powers there will be an immediate and significant increase in the decision-making powers of the devolved institutions upon exit. I should also be clear that these limits apply to an area only to the extent it is covered by EU law and not to the entire subject matter. They will not limit competence to make any provision in relation to a subject matter where this does not involve the modification of retained EU law. I urge noble Lords to refer to the Government’s frameworks analysis, published on 9 March, to see the kind of areas where we envisage that the temporary powers may need to be exercised.

Noble Lords will also want to be aware of the additional limits placed on the exercise of these powers. Not only would the powers be subject to the affirmative procedure but the amendments also apply a reporting duty, a duty to consult the devolved Administrations and a duty to produce explanatory statements.

Ministers will be under a duty to report at regular intervals on the steps taken to implement future frameworks; the way in which the framework principles that underpin that work are applied; steps taken to apply or remove restrictions on devolved competence under the powers; the progress towards removing restrictions and repealing those powers altogether once they have served their purpose; and any other information they deem relevant. All this serves to demonstrate that this mechanism is a temporary means to achieve our end state on frameworks.

Before laying an instrument under these powers, UK Ministers will also be required to consult the relevant devolved Administrations and make a statement on the effect of the instrument and any representations made by the devolved Administrations in response to consultation. Further, since these limits are but a temporary means to preserve existing EU frameworks until they are replaced by a UK framework, the amendments also provide a power to repeal the constraining powers so that they will not be retained for longer than is necessary. Ministers would be under a duty to consider periodically whether it is appropriate to repeal the powers. In doing so, they would be required to have regard to the intended temporary nature of these arrangements and to any progress in putting lasting arrangements in place.

Through this, we have sought to emphasise that these powers and restrictions are not to exist in perpetuity or as a permanent feature of the devolution arrangements. Rather, they provide a short-term fix for our longer, more detailed work on the development of long-term future common arrangements. I note in relation to this the amendments in the name of the noble and learned Lord, Lord Wallace, which would subject the current Clause 11 and any regulations made under the new Clause 11 power relating to Scottish legislative competence to a sunset limit. I understand why that suggestion has been put forward; we have of course been clear that these are temporary arrangements and I am interested to hear the debate on this point.

I must be clear that the temporary nature of the constraints is not the same as proceeding to a fixed timetable. We need to ensure that these complex matters are given due consideration, and there is a risk that the creation of a sunset merely prolongs the cliff edge.

None Portrait Noble Lords
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Oh!

Lord Beith Portrait Lord Beith (LD)
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Might noble Lords be referring to the mixed metaphor they have just heard?

Lord Keen of Elie Portrait Lord Keen of Elie
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May I proceed to split an infinitive?

The new arrangements must be achieved in partnership with the devolved Administrations. Crucially, that takes time to work through.

We must proceed with caution in considering any form of sunset which would change the purpose of our discussions from designing and implementing frameworks that are fit for purpose to ones that can be achieved in the time allowed. Our priority must be to continue to provide legal certainty on how these laws will work in that interim, but this could risk uncertainty where the provisions may lift before their replacement is known.

This is a substantial and significant amendment to Clause 11. It reflects the progress that we and the devolved Administrations have made on frameworks and in our discussions on Clause 11. It strikes the right balance, delivering for the devolved Administrations and for businesses and people across the United Kingdom. I am grateful for the consideration that this House will provide on this offer as we continue to refine and consider the policy in coming weeks.

The amendments in the names of the noble Lords, Lord Stevenson, Lord Griffiths and Lord Thomas, would amend elements of the amendments that we have put forward. We have heard much on the question of the consent of the devolved institutions for the use of the proposed new Clause 11 powers that would “freeze” existing UK frameworks. As I indicated earlier, I wish to be clear on two fundamental points. The first is that this will be a collaborative process. There is no suggestion or intention that we want to cut our devolved institutions out of these decisions. We have put in place a set of shared principles that the Scottish and Welsh Governments have agreed and which guide our work on frameworks—I referred earlier to the statement following the Joint Ministerial Committee in October last year that sets out those principles in detail. Departments across Administrations are now working together to consider frameworks. Devolved and UK Ministers continue to discuss these matters regularly at Joint Ministerial Committee meetings. The limits on the powers make it clear that the views of the devolved Ministers must be heard and the United Kingdom Government in exercising the power must set out what those views are for Parliament’s consideration. That is not a power grab. As we have heard today, this Parliament will rightly hold us to account on how the Government act on devolution policy. The second point is that we must be clear about the implications and outcomes of this work. These decisions affect every part of the United Kingdom. It is the United Kingdom Government and the United Kingdom Parliament that are responsible for matters that affect the whole of the United Kingdom.

We must therefore be very careful about the impact of a hard-edged legal requirement, not because we do not want the Scottish Government and the Welsh Government and, once restored, the Northern Ireland Executive to be part of these decisions but because it cannot be for an Administration in one devolved nation to exercise what amounts to a veto over something that would be in the interest of the other nations of the United Kingdom as a whole. That is not and never was the purpose of the devolution settlement.

I thank my noble and learned friend Lord Mackay and the noble Lords, Lord Foulkes and Lord Wigley, for their proposals to bring the United Kingdom Government and devolved Administrations together. These are constructive suggestions for a middle way that deserve serious thought. I am encouraged by the effort being made to reach agreement.

At present, we believe that the JMC will be the right forum for engagement, working under the principles agreed for the work on frameworks in October last year, but I would like to take away the ideas that have been brought to the table here today by way of the further proposed amendments and consider how these matters might be incorporated into our policy thinking, while continuing to meet our two stated objectives on legal certainty and respect for the devolved settlements.

I thank my noble and learned friend Lord Mackay of Clashfern for his amendment, which seeks to find a way forward in the context of Clause 11 and the frameworks. Again, it is an attempt to ensure engagement between all the interested Administrations to achieve consensus at the end of the day. My noble and learned friend’s amendment highlights the importance of clarity as we develop frameworks. As we have discussed during earlier debates, the work on frameworks will have to be a collaborative effort designed to ensure maintenance of a single internal market for the United Kingdom after we leave the EU. Our intention remains to reach agreement with the devolved Administrations. However we approach it, we have that as a goal.

The approach that we have put forward for Clause 11 in these amendments is, I venture, an entirely reasonable proposition. By default, and unless further action is taken, the returning EU powers in the 153 areas identified will become devolved matters. We should perhaps take pause to remind ourselves that these are entirely new powers for the Scottish Parliament and National Assembly for Wales, expanding devolved competence into areas previously held and exercised by the EU and, prior to that, by the United Kingdom Parliament.

We believe that what we propose addresses the points raised by the Scottish and Welsh Governments in their legislative consent memorandums. I hope that noble Lords will recognise that we have moved a considerable way on this, but that we continue to see the importance of providing as much certainty as early as possible for businesses across the UK in order that we can avoid, or indeed manage, divergence between the individual nations of the United Kingdom. While we have not yet reached agreement with the devolved Administrations, discussions will continue and we are extremely keen to maintain our engagement with them. But we consider that it is right that noble Lords have the chance to consider these amendments—the Government committed to that on Report and we brought them forward for consideration by this Committee. I hope noble Lords whose amendments are in this group will feel able to withdraw them at this stage; we, as I indicated earlier, will do similarly with the government amendments at the end of this debate. I beg to move.

Amendment 302B (to Amendment 302A)

Moved by
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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, are you sure? I do not think there is any need to rush this. We have covered a lot of ground and we have a lot more ground to cover now.

This amendment was put forward as a catalyst, and there has been a reaction. I leave others to judge whether it was contained or uncontained. As the noble Lord, Lord Stevenson, just observed, this is not the vehicle for major constitutional change in the United Kingdom. If we attempt to bolt that on to this Bill, it will sink without trace. Some may prefer that that should happen; nevertheless, that is not a sensible way forward. I am obliged to all those who have contributed to this debate, because it was our intention in putting forward this amendment to judge the mood of the Committee with regard to the quite radical change and approach that we have taken with this proposed amendment. It may be that I approach the matter with an open mind; it may be that I approach it with an empty mind; but at the end of the day we will have to make a decision that works for the whole of the United Kingdom.

I will take up one or two points. There is an appreciation—it may not be universal, but it is almost universal—of recognising the benefits of maintaining a single market in the United Kingdom. We already enjoy that single market by virtue of our membership of the EU, and it is something we want to retain after we leave the EU. In order to do that, there has to be agreement in principle as to the areas that underpin such a single market. The noble Lord, Lord Stevenson, alluded to the principles set out in the Joint Ministerial Committee minute of 16 October 2017. That is essentially what underpins our seeking agreement; there was consensus. That is what we need to do.

Ultimately, if we are to have a single market for the United Kingdom, we require a body to have jurisdiction over that single market. Again, as the noble Lord, Lord Stevenson, and others have acknowledged, that ultimately has to be the Parliament of the United Kingdom. There is no other way of addressing that issue. If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety. If we have a black and white, sharp-edged consent mechanism for the devolved Administrations, then we have the basis for what has been termed the veto problem. We have the situation in which, beyond the existing devolved competence, any one of these Assemblies could—it is at that level that it must be judged; not would, but could—proceed to legislate within its devolved competence in a manner that impacted upon those in another country within the United Kingdom, whether it be England, Wales, Scotland or Northern Ireland. We cannot go down that road. That would be a fundamental change in the devolved competence that we created in, and have indeed developed since, 1998.

It appears that we have, at times, merged two issues. The noble Lord, Lord Griffiths, apart from criticising Ministers for not getting on and doing any work on this, pointed out that there had to be a breathing space. Indeed, that point was developed by the noble Lord, Lord Hain, when he quoted the letter from my right honourable friend the Secretary of State for Wales. Just to put that into context—and if I may briefly go back to a point I made in an earlier part of the debate—the first stage of this process is to identify those competences coming back from the EU that will be required to operate a single market in the United Kingdom and to effectively ring-fence them on a temporary basis; thus the breathing space that the noble Lord, Lord Griffiths, referred to.

That is all that is involved in the first stage. That process has carried on in great detail since the principles were established last October. It has been the work of officials not only in Whitehall but in Edinburgh, Cardiff and Belfast. They have all come together to do what is termed in Civil Service-speak as “deep dives” into these matters. The product has now been published. It is the table that identifies 24 areas where it is considered there will have to be some temporary ring-fencing so that we can establish the next stage of the process for the single market—the framework agreements that will then form the basis for that single market.

Let us be clear: that is a separate stage. The ring-fencing is merely to hold those competences for the time required to put the framework agreements in place. We have agreed the principles on which the competences can be identified, and we have now carried out a process that identifies those competences. There is an element of disagreement about that, but only in two or three areas, so far as the Scottish Government are concerned. State aid is one of them. We regard it, for reasons I find fairly obvious, as a reserved competence, but they say it touches on a devolved competence. We will therefore have to address that, and potentially have a framework agreement in those areas as well. That is why there are a further 12 areas of competence that we are confident are in reserved areas, but which may be open to debate. None the less, there is a very substantial element of agreement on the ring- fencing.

Now let me go to the next stage. We then require the framework agreements. To the extent that those agreements will be implemented by primary legislation—it is anticipated that in many of the areas that will be the case—the primary legislation will be carried on in accordance with the constitutional conventions that we already have, and with the respect for the devolved settlement that we have always shown in the past. That includes the Sewel convention as now expressed in the Scotland Act 2016, which amended the Scotland Act 1998. It also includes those areas where, pursuant to DGN 10, such matters will touch upon the competence of Scottish Ministers.

That is where we seek the true element of consent—but ultimately, of course, if we cannot get agreement, we have the Sewel convention. Normally we proceed with the consent of the devolved assemblies, and that remains the position. That is the political understanding that underpins the devolved settlement, and has done for a very long time.

Can we just remove that dichotomy of consultation or consent? I know that within some Administrations, for reasons we do not have to explore, there is a determination to push for consent. Consent, as such, is constitutionally very difficult; I indulge in understatement when I say that. But there is still room for agreement, and the process overall should result in what somebody termed consensus—that is, a belief that we are all doing the same thing for the same reasons, with an expectation of the same result. That involves an understanding of what these frameworks are.

It has been suggested that the 24 areas of competence that require to be ring-fenced on a temporary basis should be expressed in a schedule to the Bill. I hear what is said about that, but whether it can practically be done in the context of the Bill may be another matter. As was observed, I believe by the noble Lord, Lord Stevenson, that may have to be expressed elsewhere. We can look at that, but in the first instance we have to understand what needs to be ring-fenced for the purposes of the framework agreements.

A sunset clause has been suggested, and I have already expressed a view about that. Clearly, we are listening to the idea that a sunset clause might run for five years. But the more we have gone on about this, the more we realise that what it all comes down to is two questions. One: can we have an appropriate forum in which to negotiate agreement with the devolved legislatures? Yes; that has been carried on in the joint ministerial committees. They have been criticised, but they have been successful, as can be seen by the agreement in principle in respect of these matters. Can we achieve that? The answer is yes.

Secondly, can we then express, in a manner that will satisfy the devolved Administrations, what the framework agreements will be? The answer to that is again yes because we will follow the normal and usual constitutional principles that involve embracing the Sewel convention in cases where primary legislation is required.

I hope that goes some way to reassure noble Lords that we are making progress here because underneath the concern about consent versus consultation there has been considerable movement. We not only have the principles that we will apply to the ring-fencing of competences but we will also have the means to bring forward framework agreements in a manner that will satisfy the devolved competence, as I say. It may be that it will go beyond the 24 areas already identified but work can continue on that matter. What is ultimately of importance is that we retain the means for uniformity of regulation in those critical areas that touch on the principles enunciated in October 2017. That is what has to be achieved. There may be more than one road but ultimately they all lead to Rome, and that is where we want to be at the end of the day, so with that—

Lord Newby Portrait Lord Newby (LD)
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They go to Brussels.

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Lord Keen of Elie Portrait Lord Keen of Elie
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I reassure the noble Lord, Lord Newby, that the roads do not go to Brussels any more. However, he is welcome to go and hack a path there, if he wishes. With that, I seek to withdraw the government amendment.

Amendment 302B (to Amendment 302A) withdrawn.

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018

(6 years ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-XI Eleventh marshalled list for Committee (PDF, 81KB) - (26 Mar 2018)
Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, at one stage I thought that, for the first time in many days, I was going to agree with the noble Lord, Lord Adonis, but then he went and spoiled it.

Many people—today, yesterday, a year ago—wanted to remain EU citizens, but more people decided that they did not. That is where we find ourselves today. I do not seek to elaborate on that. I understand the strength of feeling from many people who did not want to see us leave the EU, but the reality is that we will. The consequence of that is clear and has been made clear by the noble Baroness, Lady Hayter, and the noble Lords, Lord Adonis and Lord Kerr: pursuant to Article 20, EU citizenship is an addition to the citizenship of a member state.

Lord Dykes Portrait Lord Dykes (CB)
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I apologise for interrupting at this juncture because the Minister has only just begun his interesting speech. He asserted that people voted decisively in favour of Brexit and therefore also against being European citizens. As far as I recall, that did not really come up in the campaign, so how many of those people would have known about EU citizenship arising from the Maastricht treaty a long time ago?

Lord Keen of Elie Portrait Lord Keen of Elie
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It is so utterly basic to the issue that it is difficult to conceive of many, if any, people who did not understand the nature and consequences of Brexit, so I will not elaborate on that.

I want to come back to remarks made by the noble Lord, Lord Adonis, as well as the noble Lord, Lord Wigley, in an earlier debate. We have debated this already in Committee in the context of another amendment. The noble Lord, Lord Adonis, mentioned Northern Ireland. Clearly, where one meets certain residency tests in Northern Ireland, one is eligible to apply for a passport from the Republic of Ireland Government. By that means, membership of an EU state can be retained and one can remain an EU citizen. As I indicated in an earlier debate, there are two areas of opinion in Northern Ireland: there are people who are perfectly happy—indeed, anxious—to secure a passport from Dublin and people who have no desire to do so.

Lord Adonis Portrait Lord Adonis
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I am afraid I must disappoint the noble and learned Lord because I think we are continuing to agree. However, I asked him why he will not extend the right to apply for an Irish passport to those of us on the mainland.

Lord Keen of Elie Portrait Lord Keen of Elie
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It is not in my gift. It would be a matter for international treaty negotiation between the United Kingdom and the Republic of Ireland. It is for Ireland to decide who it will admit as citizens of the Republic; it is not for us to demand. That is the answer to the noble Lord’s point.

Baroness Altmann Portrait Baroness Altmann (Con)
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As a point of interest, perhaps one should recommend to all pregnant mothers in Great Britain that they might consider going over to Northern Ireland to have their babies.

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

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

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

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

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

Lord Wigley Portrait Lord Wigley
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I am very sorry to hear that this would prevent the Bill reaching the statute book. Notwithstanding those feelings, I ask the noble and learned Lord to address the point I raised in my earlier comment about the 1969 Vienna Convention on the Law of Treaties that that convention,

“will be binding on all remaining Member States, the UK, and the EU itself post Brexit”.

Does he accept that the convention,

“ensures that the status and rights of those EU citizens resident in the territory of the Union and those resident in the UK will continue”,

after Brexit?

Lord Keen of Elie Portrait Lord Keen of Elie
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I hope the noble Lord did not pay good money for that opinion. He will perhaps elaborate on the position in due course, but I do not accept that proposition.

Lord Wigley Portrait Lord Wigley
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I will not come back after this intervention, but has he read the document to which I referred, or have experts in his department done so?

Lord Keen of Elie Portrait Lord Keen of Elie
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I have not read the opinion in question, but I am not unfamiliar with the terms of the Vienna convention on treaties.

Lord Wigley Portrait Lord Wigley
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If between now and Report he or his advisers have an opportunity to read that opinion and, having done so, feel that what has been said in a Chamber does not fully reflect the situation, will he be prepared to come back at a later stage?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am perfectly content to look at the opinion.

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

Lord Keen of Elie Portrait Lord Keen of Elie
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The reality is that if Brexit takes place we will not continue to be EU citizens.

Lord Wigley Portrait Lord Wigley
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My Lords, I am very grateful to everyone who has participated in this short debate, particularly to the noble Earl, Lord Clancarty, who I am sorry I relegated in my earlier reference. I also thank the noble Lord, Lord Adonis, with whom I usually fully agree on these matters, although it was encouraging to hear that there may be alternatives by not pursuing this Bill. I thank the noble Baronesses, Lady Smith, Lady McIntosh and Lady Hayter, and the noble Lords, Lord Davies, Lord Kerr and Lord Roberts of Llandudno, for their comments. I think I have got as far as I am likely to get on this. I was grateful to the Minister for saying that he is prepared to look at the opinion to which I have been referring. I can ask no more than that, and on that basis, I beg leave to withdraw the amendment.

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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am obliged to the noble and learned Lord, Lord Goldsmith, for raising the issue of Clause 6 in the context of the implementation period that is referred to in his amendment. Reference is made repeatedly to the transition period; yes, we recognise that there is to be an implementation period, as it is termed, if that and everything else is agreed. But nothing is agreed until everything is agreed, so we do not yet have that implementation period. We desire it and recognise that the EU also sees its significance. That is why we were able to express matters as we have in the March text—the multi-coloured text to which the noble and learned Lord referred. I agree with his reference to Articles 82 to 85 in that context and the point that they are on white, because they express a proposal and not a concluded agreement on those points. That is what I want to underline at this stage.

As I have said during Committee on a number of occasions, this Bill is to ensure that there is a functioning UK statute book on day one, regardless of the outcome of negotiations. In his speech on the implementation period, the Secretary of State was clear that it will allow—if it is finally agreed—a strictly time-limited role for the European Court of Justice, in keeping with the EU’s existing structures.

I am sensitive to the fact that unlike some other amendments, the provisions of this amendment are conditional upon the implementation period being part of the withdrawal agreement. Accordingly, they do not fully prejudge the outcome of negotiations and I acknowledge the delicacy of the drafting of the noble and learned Lord, Lord Goldsmith, in that respect. However, that does not change what we have asserted consistently: that the details of the implementation period will be legislated for in the withdrawal agreement and the implementation Bill. We have always been clear that the major elements of the withdrawal agreement will be implemented in that Bill and not in this Bill.

Lord Dykes Portrait Lord Dykes
- Hansard - - - Excerpts

Presumably that means, too, that because there are so many gigantic individual subjects to be agreed in the implementation period, it would be perfectly feasible for the Union and the United Kingdom in further negotiations to agree on a longer period in order to get through all the complicated material, which the Government still say will be easy to do but will be extremely difficult.

Lord Keen of Elie Portrait Lord Keen of Elie
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The Government’s objective is to conclude a withdrawal agreement by October of this year. That has been stated on a number of occasions and it is in that context that we intend that the present Bill should deal with the situation, whether or not there is a withdrawal agreement or an implementation period. As and when a withdrawal agreement is concluded, it will be dealt with in the withdrawal agreement and implementation Bill. Clearly, if we enter into an international treaty with the EU 27 in respect of these matters, we will respect that international treaty and our obligations inherent in it and, in accordance with the duality principle, draw down those obligations into our domestic law, using the withdrawal agreement and implementation Bill. I suggest that it is inconceivable that we would not seek to do that.

Lord Beith Portrait Lord Beith
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The noble and learned Lord has been quite clear that it will be the withdrawal Bill that is the mechanism. Is he saying that it will be that Bill and not the use of the statutory instrument powers to be found elsewhere in this Bill which will enable him to modify or repeal its sections when it is an Act?

Lord Keen of Elie Portrait Lord Keen of Elie
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We have been clear that the withdrawal agreement and implementation Bill will legislate for the withdrawal agreement. That may involve us amending the terms of the present Bill, but we should remember that the present Bill is intended to accommodate the situations where there is a withdrawal agreement and where there is no withdrawal agreement and therefore no implementation period. It is to bring certainty to the statute book in that context. Clearly, there may be a situation in which we have to bring forward amendments to the present Bill in the second withdrawal agreement Bill. I recognise that.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard
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The Minister has just been paying tribute to the delicacy of the drafting of the noble and learned Lord, Lord Goldsmith, whose language in this amendment copes with both eventualities. It sets out the contingency that there is a transitional agreement. I do not see the difficulty.

Lord Keen of Elie Portrait Lord Keen of Elie
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It is not a question of difficulty; it is a question of how we have decided to approach dealing with this in a legislative manner. The intention is that the present Bill will legislate for legal certainty whether there is or is not a withdrawal agreement. In the event of a withdrawal agreement, we will legislate to ensure that in the withdrawal agreement and implementation Bill the terms of the present Bill will be brought into line with the terms of the withdrawal agreement in order that we can discharge our international legal obligations. We have consistently pointed out that that is the approach being taken to legislation in this context. It is really quite inconceivable to suppose that the Government are going to enter into a withdrawal agreement and then not implement that international legal obligation in our domestic law. That is the intention. It is simply a question of the order in which these things are being done, and it has always been maintained, and will be maintained, that it is not for this Bill to deal with the eventuality or the prospect of the implementation period.

Baroness Ludford Portrait Baroness Ludford (LD)
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Does the Minister not appreciate the absurdity some of us feel? As the noble Lord, Lord Hannay, pointed out, we are being marched to the top of a hill that the Government have already abandoned. We are being asked to legislate in terms that are contrary to government policy and strategy in the Brexit negotiations, which leaves one feeling in a somewhat surreal position.

Lord Keen of Elie Portrait Lord Keen of Elie
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I sympathise with the idea of being left in a somewhat surreal position. As I said at the outset of my remarks, nothing is agreed until everything is agreed, so while we have the anticipation and desire to secure an implementation period, nothing is agreed until everything is agreed.

Lord Cormack Portrait Lord Cormack (Con)
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Does my noble friend not think of Sir Thomas More:

“I trust I make myself obscure”?

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Lord Keen of Elie Portrait Lord Keen of Elie
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I often think of Sir Thomas More, but not on this occasion.

Lord Hannay of Chiswick Portrait Lord Hannay of Chiswick
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I find it rather hard from the Cross Benches and as a non-politician to make this point, but I wonder whether the Minister has considered what the Government are proposing to do. They are proposing to offer in an Act of Parliament signed into law by the Queen something which they know is not going to happen. They have offered that up; their supporters will, no doubt, rise cheering to their feet; and then, three or six months later, they will repeal that part of the Act, at which point there will be cries of betrayal and perfidy—and those are probably rather mild words compared with the ones that will be used by the Daily Mail and others. Have the Minister and his colleagues not given any thought to that? Is not the simple thing to do to accept the amendment, and then there will be no betrayal and no perfidy, or if there is it will have been done already?

Lord Keen of Elie Portrait Lord Keen of Elie
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There is no betrayal and no perfidy, but I feel misrepresented by the noble Lord because he said “knowing that there will be an agreement”. We do not know for certain that there will be an agreement. Nothing is agreed until everything is agreed. Of course, we have an aspiration; we seek to secure the implementation period, and when we do we will then legislate for that in the withdrawal agreement and implementation Bill. Meanwhile, this Bill is designed and intended to accommodate the situation in which there may not be such an agreement.

Lord Wallace of Saltaire Portrait Lord Wallace of Saltaire (LD)
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I hate to add to the surreal nature of this, but the formula “Nothing is agreed until everything is agreed” seems incompatible with negotiating a transitional agreement during which we recognise we will agree only a small number of things and carry on negotiating. It seems to me that the Government should now drop the mantra that nothing is agreed until everything is agreed, because we are actively pursuing, if I understand the Government’s case, a transitional partial agreement, during which a number of commitments will be made but a number of the fundamental issues of our future relationship with the European Union will remain entirely unclear and will be negotiated in the two or perhaps three or more years afterwards.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, we are engaged in a bilateral negotiation; it has not yet concluded. This Bill is designed to accommodate the situation in which there may not be a conclusion to that negotiation, as well as a situation in which there may be. In the event of the latter case, the withdrawal agreement and implementation Bill will bring the legislation into line with the statute book.

Baroness Altmann Portrait Baroness Altmann
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Will my noble and learned friend clarify for the Committee, if nothing is agreed until everything is agreed and we may not go into a transition period, how it can possibly make sense to have 29 March written into the Bill?

Lord Keen of Elie Portrait Lord Keen of Elie
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Because that addresses a distinct issue, which is the exit date from the EU. It is quite distinct from the question whether we are able to finally conclude an implementation period, which it is our intention to do. Let us be clear about that. The EU has also indicated its intention to do it as well. But we are engaged in a bilateral negotiation.

Lord Pannick Portrait Lord Pannick
- Hansard - - - Excerpts

It is plain and obvious that nothing is agreed, but can the noble and learned Lord be clear with the Committee about the Government’s position in relation to negotiating this transitional implementation period? Do they now accept that they are no longer seeking to impose any red line relating to the jurisdiction of the Court of Justice during that implementation period?

Lord Keen of Elie Portrait Lord Keen of Elie
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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 Portrait Lord Goldsmith
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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.

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Lord Goldsmith Portrait Lord Goldsmith
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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 Portrait Lord Keen of Elie
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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.

Lord Beith Portrait Lord Beith
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The noble and learned Lord is being reasonable, but he is inviting us to presume that we have moved on when we have not yet done so. The Government have indicated a willingness to look further at the Clause 11 issues and come back with something new. However, when we compare that discussion to the one we just had, it is a bit odd now to be invited to behave as if something has happened which has not happened yet.

Lord Keen of Elie Portrait Lord Keen of Elie
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I understand the noble Lord’s point. He appreciates the statements of intent that we have made with regard to Clause 11. Although we withdrew the amendment to Clause 11, it was tendered and withdrawn for a particular purpose, in order to ensure that it could be finalised before Report. I hope that that addresses the noble Lord’s concern about the terms of the Explanatory Note that he quoted.

We have discussed on previous occasions in Committee the risk of ossifying the statute book and how that has to be balanced against checking the ability of the Government to propose changes to retained EU law. Clearly, as I indicated, the Government have heard the debates on the question of how we should treat the status of retained EU law, and we intend to come back on that. However, we must make provision for how delegated powers outside the Bill will interact with retained direct EU legislation. To do nothing would create uncertainty and potentially—by putting it beyond the reach even of Henry VIII powers that can modify Acts of Parliament—risk placing retained EU law on a pedestal of protection beyond even the elevated position of primary legislation. That is why I say that the two issues are linked: how we deal with the status of retained EU law but also carry on with our domestic powers to deal with the entire scope of our domestic legislation, including that which is going to be defined as retained EU law.

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Lord Wallace of Saltaire Portrait Lord Wallace of Saltaire
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My Lords, since we have returned to the subject of Henry VIII powers, I would like to inform the Minister that, after this morning’s discussion on the Statute of Proclamations, I looked up the Wikipedia entry—my historical memory of this being relatively limited—and discovered that Thomas Cromwell’s original proposals for the Statute of Proclamations passed through the House of Commons unamended, but they were amended in the House of Lords. Does the Minister think that is a relevant precedent?

Lord Keen of Elie Portrait Lord Keen of Elie
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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 Portrait Lord Goldsmith
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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 Portrait Lord Keen of Elie
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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.

Lord Pannick Portrait Lord Pannick
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I am grateful to the noble and learned Lord, who I have always regarded as a true Renaissance Minister in all respects. I am very pleased to hear him confirm that the Government are seriously considering the issue of the legal status of retained EU law. The Committee of the House will look forward to seeing amendments from the Government in that respect. I am far less persuaded of the need to include in this Bill paragraphs 3(1) and 5(1) of Schedule 8, in addition to all the other extensive powers which the Government—and Ministers—will be giving themselves to amend retained EU law, under Clauses 7, 8, 9 and 17. The question is: why is it necessary also to include these powers in Schedule 8?

The concern, as the Minister will understand, is that future Ministers may decide that it is much more convenient to use the extensive, unrestricted powers in Schedule 8 than to comply with whatever restrictions are imposed by this House, by the other place—by Parliament—on the powers to modify under Clauses 7, 8, 9 and 17. So we might need to come back to this matter on Report.

I was also interested to hear the Minister say in his reply that the Bill is not the place for “radical policy change”. I will remind him of that when we debate the amendments—which no doubt will be put forward on Report—to take out the provisions in the Bill that remove from retained EU law the European Union charter of rights. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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My Lords, as has been said, this is an issue for which the Government simply have to produce a solution. For once I am quite glad that I am at the Dispatch Box on this side of the Chamber so it is not my problem—but I do know that it is a problem that the Government absolutely must solve. Let us consider some of the subjects covered by the list in the amendment: safeguards for child suspects in criminal proceedings; the recognition of professional qualifications, which will be extraordinarily important for business; health and safety; and the trademarks directive. We cannot afford to have gaps, particularly with something such as trademarks. This list covers issues that are already our policy and have been adopted with our consent, so we need to find a way of getting them into our legislation. How that can be done, I hope the Minister will now tell us.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I begin by apologising to the House, and to the noble Baroness, Lady McIntosh, for not having been in my seat when she moved the amendment. I can attribute that only to my oversight, and to a disappearing group of amendments.

We addressed this matter in Committee. As has often been said during the passage of the Bill, it is intended to create a snapshot of EU law as it applies in the United Kingdom immediately before exit day, and then to retain it in our domestic law following our departure. That has always been the necessary mechanism. It is crucial that this snapshot is taken accurately and with certainty, to ensure that, as far as possible, the law we have before exit will be the same as the law after exit. This is not merely a dry technical or legal point. It is fundamentally important to people, businesses and other organisations throughout the country that we should have that degree of certainty.

Keeping that in mind, I turn first to Amendment 8 and the questions that have been raised in that context. Unlike other EU law such as regulations, decisions, and tertiary legislation, EU directives are not intended to form a part of a member state’s domestic law. Instead they require member states to bring forward their own national measures within a certain period of time, in order to implement their intended effect domestically. It is these domestic measures which are part of our law, and will be saved under Clause 2.

Questions have been raised about a series of directives that have been adopted, which have been helpfully listed by the noble Baroness, Lady McIntosh. The noble Baroness, Lady Smith, suggested that there was an anomaly in the situation when directives had been adopted at EU level but not implemented. However, with respect, where they have been adopted, so be it. Where they have been implemented we have a different scenario: they form part of our domestic law.

There are two developments that I wish to mention, because they impact on the amendment and the questions that have been raised in this context. First, the Government have reached agreement with the EU—subject to everything having to be agreed before anything is agreed—regarding an implementation period that will begin on 30 March 2019 and last until 31 December 2020. It is proposed and agreed that for the implementation period the United Kingdom will continue to follow and implement EU law, and that the existing EU mechanisms for supervision and enforcement will continue to apply. The proposed final agreement with the European Union will include the implementation period and its domestic effect. As the noble Baroness, Lady Smith, anticipated, that will be provided for by the withdrawal agreement and implementation Bill. That has an impact on the series of directives to which the noble Baroness, Lady McIntosh, refers in her Amendment 8. Before I turn to those directives, I should observe that at least two of them are directives in respect of which we have opted out; in other words, as member states can do, they can secure an opt-out from a directive and it is never implemented in their national law, nor is it intended that it should be so implemented. Those directives in the noble Baroness’s amendment are: at paragraph (d), the legal aid (suspects, accused persons and those under European arrest warrant proceedings) directive; and, at paragraph (g), the safeguards for child suspects in criminal proceedings directive. In respect of those, there is already an opt-out in place; it was never intended that we would opt in and implement those directives—that is simply the position at the present time.

On the remaining directives listed in the amendment, there is a confusing reference to the websites and mobile applications directive, which I believe should be a reference to a 2016 directive. However, putting that to one side, I can say that all but two, or possibly three, of these directives will be implemented during the implementation period running up to 31 December 2020. That will be provided for by the withdrawal and implementation Bill, which is the instrument that will be employed for that purpose. Those directives will be addressed. There are exceptions. There are instances, for example, in which a directive can have a divided implementation period, where it may be only partially implemented before the final implementation period date of 31 December 2020. Essentially, we must come back to the fundamental requirement for an identifiable point at which we have ring-fenced and identified retained EU law. That is subject to what will go into a withdrawal and implementation Bill in the event of the implementation period agreement being implemented. That will cover all such legislation.

Amendment 32, also tabled by the noble Baroness, Lady McIntosh, would amend Clause 7 so that it would extend the correcting power of Ministers to include legislation arising after the snapshot had been taken. As set out before, Clause 3 seeks to convert direct EU legislation—regulations, decisions and tertiary legislation—as it applies in the UK immediately before our exit from the EU into our domestic statute book. This provision is a reflection of the snapshot approach taken by the Bill and is to ensure that our law stays as similar as possible following our departure to what it was immediately before our exit.

While most direct EU legislation will apply shortly after it is adopted, certain provisions within the legislation may be stated to apply in a staggered way on different dates. If the date falls after our exit from the EU, these provisions will not be retained by the Bill in our domestic law. That cut-off provides the necessary clarity for individuals and businesses to understand what the law is both pre and post the exit date.

Instead of seeking to change this clear cut-off point, the noble Baroness’s amendment would amend how such staggered implementation within direct EU legislation may be treated for the purposes of the correcting power within Clause 7. As will be discussed in much greater detail on later days, the power contained in Clause 7 is designed to correct the “deficiencies” arising within retained EU law as a result of our withdrawal from the EU, thereby helping us to provide a functioning statute book from day one. As I understand it, the noble Baroness’s intention in tabling Amendment 32 was to widen the definition of “deficiency” to include the provisions within direct EU legislation which are stated to apply after our exit from the EU, thereby giving Ministers the ability to use Clause 7 to bring them into our domestic law. That is currently prohibited by Clause 7(4).

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Baroness Sherlock Portrait Baroness Sherlock (Lab)
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My Lords, I am grateful to my noble friend Lady Kennedy of The Shaws for a characteristically impressive summary of the challenges facing us in relation to family law post Brexit. I should also like to place on record my appreciation of the work done by the EU Justice Sub-Committee, which she chaired so ably, and the very helpful report it produced last year entitled Brexit: Justice for Families, Individuals and Businesses?. These issues are of huge importance to a significant minority of our citizens, and I am grateful to the noble Lord, Lord Inglewood, for underscoring just how much personal pain can be at stake in individual cases and how important it is that we get this sorted as soon as possible.

In Committee, we had a wide-ranging discussion on a number of amendments related to the post-Brexit family law landscape, so I will not go over that ground again. I am grateful to the Minister for subsequently meeting a number of us who spoke in Committee, along with some family lawyers. I hope very much that that dialogue can continue as we discuss these matters further.

In replying to me in Committee on 5 March, the Minister confirmed that the Government wanted to,

“agree a clear set of coherent common rules about: which country’s courts will hear a case in the event of a dispute—that is choice of jurisdiction; which country’s law will apply—that is choice of law; and a mutual recognition and enforcement of judgments across borders”.

That is what is at stake. The Minister continued:

“We believe that the optimum outcome for both sides will be a new agreement negotiated between the UK and EU as part of a future partnership which reflects our close existing relationship”.—[Official Report, 5/3/18; col. 854.]


That is what we all want. The point made by the noble Lord, Lord Marks, is that almost nobody disputes that what we have at the moment is the Rolls-Royce of family law provision. But time is very tight indeed. I understand that Ministers would like to negotiate a deal for the implementation period but that does not leave much time, even if it is forthcoming, to get a deal in place by the time we leave the European Union. If we crash out without a deal, things get very serious indeed. My noble friend Lady Kennedy of The Shaws is asking for reassurance that the Government are determined to do this: to get a full, properly reciprocal deal in place; to make a priority of it; and to find a way for Parliament to be kept informed about how those negotiations are going.

I understand that the noble and learned Lord, Lord Mackay of Clashfern has two different objections. I think he suspects that we are trying to press the Government to do something that they cannot do, which is to deliver reciprocity on their own. We would contend that we know that and that is the problem. One of the difficulties about this very situation is that the way the Bill has been framed means that, in the case of family law, because it is English and Welsh family law or Scottish family law that we retain, simply bringing that in does not mean that things stay the same. It means that things change in precisely the way my noble friend Lady Kennedy explained. With that family of a British man and an Italian woman, if the Italian woman were to take the couple’s son away to Rome and he pursued a British court for an order to have the child returned, whereas at the moment the court in Rome would have to recognise that, in future it would not. Under this arrangement, however, this country would have to recognise an Italian order for a child to be returned if the situation were reversed. That is the reciprocity that we cannot get around.

I fully accept that the Minister and the noble and learned Lord, Lord Mackay of Clashfern, may not like the wording of this amendment about the report. I honestly do not mind very much. All I would like to see is some means by which the House can be reassured that the Government are making progress, that they will keep us informed and that we will find out in good time how the problems for families described very movingly by the noble Lord, Lord Inglewood, will be solved. Will the Minister please give my noble friend and the House the reassurance that we seek this evening?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for raising this important issue. We discussed it at some length in Committee and I will not repeat the points I made at that stage. But, as the Government outlined in their position paper published in August last year, we are committed to continuing civil judicial co-operation with the EU once we leave. That of course includes the area of family law as covered by Brussels II and Brussels IIa, as it is clearly in the interests of all individuals and families both in the UK and throughout the rest of the EU that there should be an effective area of civil judicial co-operation for these purposes. Of course, that will be the subject of negotiation.

Amendment 14, while clearly well intentioned, is potentially burdensome and I venture to suggest is not necessary. My noble and learned friend Lord Mackay of Clashfern pointed to what is potentially a deficiency in the drafting of subsection (1) of the proposed new clause, but I do not take issue with that. I understand the point that is being made about the underlying principles of reciprocity and its importance in this context.

To suggest a six-month period for a report is of course an arbitrary deadline, which makes no reference to the position of the negotiations between the EU and the UK at that stage, or to any other steps that have been taken by the Government in regard to these issues. The Government are concerned not only with the final agreement reached in negotiations but in addressing what will be done with regard to retained EU law, including retained family law. Ultimately, any agreement that takes place between the United Kingdom and the EU to reflect not only our domestic position but the need for reciprocal enforcement will be the subject of the upcoming withdrawal agreement and will be legislated for in what is proposed to be the Withdrawal Agreement and Implementation Period Bill—so it is not something that will be the subject of the present Bill.

But I stress that the Government share the view expressed by the noble Baroness and others in the House on the importance of maintaining an effective system for resolution of cross-border family law disputes once we leave the EU. It will be an important part of the partnership that we seek to maintain with the other EU 27 countries. The Government certainly believe that intergovernmental co-operation and mutual recognition is of benefit to all parties. This is not an instance in which the EU has one particular interest and we have another. We all understand that the individuals and families concerned are affected right across the EU. We have made it clear that civil judicial co-operation in respect of family matters will be part of our future relationship with the EU.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018

(5 years, 11 months ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-R-III Third marshalled list for Report (PDF, 247KB) - (23 Apr 2018)
Lord Goldsmith Portrait Lord Goldsmith
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I will listen attentively to what the Minister says, of course, but I do not anticipate that we will hear anything new. In those circumstances, I hope that the noble Lord, Lord Pannick, will ask the House to state its opinion. I will be glad to go in the Lobby with him then, as I hope will many Members of the House.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I thank all your Lordships for an interesting debate which has addressed some of the issues in considerable depth. In a short but telling address, the noble Lord, Lord Howarth, noted that he was not a lawyer, but he exhibited a depth of understanding and a delicacy of touch in respect of our constitutional settlement that is absent from many lawyers, including, I fear, one or two who have spoken in this Chamber.

None Portrait Noble Lords
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Oh!

Lord Keen of Elie Portrait Lord Keen of Elie
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Why should I say that? Let us be clear: the Charter of Fundamental Rights of the European Union applies only to a member state where it is directly implementing European Union law. As my noble and learned friend Lord Mackay of Clashfern observed, that point was reinforced in a judgment of the United Kingdom Supreme Court just a few months ago, when it said that it is not enough to address something within the scope of EU law. The charter has applicability only where a nation member state is directly implementing EU law. That has to be borne in mind.

When we leave the EU, whether you wish it or not, we will not be a member state and we will not be directly implementing European Union law. We will have a body of law brought into our domestic law under the heading “retained EU law”. It is a body of law which will diminish over time and diverge from European Union law over time as the latter develops.

What do we find in a document, the Charter of the Fundamental Rights of the European Union, that will assist us after exit, and on what constitutional basis are we to maintain it? The noble and learned Lord, Lord Goldsmith, helpfully referred to the explanatory notes to the charter. It is worth bearing those in mind, because the preamble to the charter, which I appreciate the noble Lord, Lord Pannick, would exclude from his amendment, tells us that,

“the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter”.

So the charter is a living document because it is subject to explanations, which, as the noble and learned Lord pointed out, may assist in our approach to the charter itself. But it goes further than that. We may decide, as is suggested by the amendment, to ring-fence the charter within that body of law referred to as retained EU law. But, as the noble and learned Lord, Lord Hope, observed in Committee, if that was to be attempted, the charter,

“will have to be largely rewritten if we introduce it into our law, but it is not designed for the kind of situation we are facing after Brexit. It is designed for use within the Union and to be interpreted by the CJEU”.—[Official Report, 26/2/18; col. 544.]

In that respect he was entirely correct.

However, just saying that the charter is going to be ring-fenced into domestic law is not even half the story. One has to have regard to the content of the charter itself—something that will apply only to a member state implementing EU law. If I am a little tedious on this point, I apologise in advance, but it is worth noticing some of the terms of the articles within the charter itself; one or two were referred to by my noble friend Lord Faulks. In the context of non-discrimination, it is to be looked at,

“within the scope of application of”,

the treaties. In the context of workers’ rights to information and consultation, it is to proceed not only under the conditions of “national laws and practices” but,

“under the conditions provided for by Union law”.

We will come back to that. In respect of the protection in the event of unjustified dismissal, it is to be considered not only in the context of national law but,

“in accordance with Union law”.

Article 34, with regard to social security and social assistance, is to be addressed,

“in accordance with the rules laid down by Union law”,

not just national law; that also applies in the context of social and housing assistance. With regard to economic interest, under Article 36, the objective is,

“to promote the social and territorial cohesion of the Union”.

Environmental protection is to be,

“integrated into the policies of the Union”.

Consumer protection is concerned with “Union policies”. The right to an effective remedy and a fair trial refers to everyone,

“whose rights and freedoms guaranteed by the law of the Union are violated”,

so again we have to have regard to the law of the Union. Within the field of application itself, we have already noted that the charter applies only when a member state is directly implementing Union law.

What do we mean by “Union law”? Well, it is not international law and it is not national law. The Government, exercising the royal prerogative, can enter into international treaties at the level of international law. That is precisely what they did in 1972. That has no impact on domestic law. It is only when this Parliament decides to draw down those international treaty obligations into national law that those laws become binding upon us. That is where Parliament has to decide. So what is union law? Since at least the decision of the European Court of Justice in Van Gend en Loos in the 1970s, it has been stated repeatedly by the courts of justice in Europe that EU law is not a species of international law. It represents a new legal order for the members of the Union. That is Union law. In a sense it is a form of federal law: a law that applies to all the member states of the Union.

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Oh!

Lord Keen of Elie Portrait Lord Keen of Elie
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There we go.

The next stage is to say that we as a Parliament do not trust our ability to hold the Executive to account. Then we go on to the next stage to say, of course, that we do not trust the electorate to return a Parliament that is capable of protecting their fundamental rights. What happened to the mother of Parliaments? What happened to the concept of the sovereignty of this Parliament? We are apparently prepared to abandon it in favour of a body of foreign law because we no longer trust ourselves to protect our own fundamental human rights. Is that what we have really come to? It is a shocking dénouement: whether you wish to leave the European Union or you do not wish to leave the European Union, the idea that we are going to have to cling on to a body of foreign law in order to maintain fundamental human rights in this country is simply astonishing. As I indicated before, it would reflect not only a constitutional outrage but a total abdication of our responsibilities.

Looking to Amendment 15, what is it actually going to do? It is going to bring into our domestic law a charter that relies upon union law—a developing body of foreign law going forward. Are we going to monitor this, because we are not ring-fencing the terms of the charter if we bring it into retained EU law? It will be subject, going forward, to the Explanatory Notes; it will be subject, going forward, to the development of Union law; and on the back of that, where we are supposed to be directly implementing EU law—and I can only infer that the intention of the amendment, although it is not stated and cannot be found there, is that this applies to retained EU law rather than EU law itself—the intention is that we should therefore be bound to watch while primary legislation of this Parliament is struck down on the application of a foreign body of law. We need to wake up to why the charter in its present form does not sit with our future constitutional settlement after we leave the EU and why it does not fit with the body of retained EU law that is referred to in the Bill.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD)
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If the charter is incorporated, does it not become retained EU law? Therefore, it would be subject to the mechanisms that are set out in Clause 7 of the Bill, which would enable Parliament, or Ministers—however we decide—to change it afterwards, with proper debate. What is going to happen to the rights contained in the charter which are above the rights that we have at the moment, as he has conceded and as has been conceded by other people? What is going to happen to those rights? They will fall away; they will not become part of retained EU law and therefore will not be part of the law of this country.

Lord Keen of Elie Portrait Lord Keen of Elie
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With great respect to the noble Lord, just because the charter is made part of retained EU law in terms of the Bill does not mean that Union law, which is the linchpin and anchor of the entirety of the charter, is then retained EU law. Union law remains Union law. Therefore the charter will continue to develop. Even though it is ring-fenced within retained law, the body of the charter will be subject to Union law. You cannot have it both ways.

The noble Lord also mentioned the loss of rights. As we indicated, we have done an analysis of rights, which has been published. We have indicated that if, once this Bill is passed, it is apparent that any substantive rights are lost, we will address that. With great respect, it appears to me that the noble Lord misses the fundamental point, which is that we are effectively going to be submitting to a body of foreign law after we exit the EU if we proceed in this way. I am afraid that is the case. We cannot say we are going to be directly implementing European Union law when we are no longer a member. We will not be. It amounts to that.

I accept that various views have been expressed by various parties about the scope of the rights that will be retained after we leave the EU without the charter, and there is a lively debate about that, but let us remind ourselves again that the charter has application only when we are directly applying EU law. My noble and learned friend Lord Mackay of Clashfern made the point. What happens to the right to dignity in circumstances where we are not directly applying EU law? Of course it still exists. We recognise that. We would have no difficulty in recognising that, and we do not require Article 1 of the charter for that purpose. In these circumstances, noble Lords have indicated, quite rightly, that to incorporate, or even to attempt to incorporate, the charter, particularly in the form of this amendment, is to do serious damage to our entire constitutional settlement, particularly post Brexit. I hear someone say, “Outrage”, and I agree with them.

I now come to Amendment 18, which was tabled by the noble Lord, Lord Beith. He suggested that his amendment would be a necessary consequence if Amendment 15 is carried, but I do not accept that it is a necessary consequence in those circumstances. His amendment, which seeks to remove the power in paragraph 2(2)(b) of Schedule 1 and the related provisions in sub-paragraph (3), is not appropriate. Schedule 1 generally ends the ability to bring challenges on EU law validity grounds to what will become retained EU law after we leave. After exit, individuals would continue to be able to challenge EU decisions before the CJEU and to have them annulled, in so far as they apply in the EU. The converted form of the decision would, however, remain in force within the United Kingdom. Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not think it would be right to hand them a wide-ranging new jurisdiction which asks them effectively to assume the role of the CJEU. The noble Lord’s amendment does not alter that general exclusion.

Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument which has been converted and should have a right to challenge it. For example, it would be strange if after exit a UK business were able to challenge and have struck down an EU decision which prevents it carrying out certain trading activities within the EU but would not have any equivalent right of redress in relation to the form of that decision which has been retained as part of UK law. It is for that reason that provision is made for this power. I note the noble Lord’s observation that it may be exceptional and may never be used. I accept that, but it is felt that it should be there as a safety measure. I urge the noble Lord not to insist on that amendment.

With regard to the position of the noble Lord, Lord Pannick, I ask him to think again about Amendment 15. I ask him to think very carefully about the form of it and what he is actually attempting to bring into domestic law, because it simply does not fit. It is in those circumstances that I invite him to withdraw his amendment.

Lord Pannick Portrait Lord Pannick
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My Lords, this has been a powerful and passionate debate and I thank all noble Lords who have spoken, whether they have supported Amendment 15 or opposed it. In particular I thank the Minister, even though he thinks I lack—what was it?—the delicacy of touch that is appropriate in these circumstances. I am going to go away and work on it.

I shall attempt—briefly, because we have had a long debate—to answer the main points that have been made against the amendment. The noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Mackay of Clashfern, expressed concern that the charter of rights will enable courts to strike down legislation. The noble Lord, Lord Howarth, expressed a similar concern: “What about parliamentary democracy?” was his theme. The Minister put his case very high: he said it was “shocking” and a constitutional outrage that we should be bound after exit by a body of foreign law. I have to ask him to read his own Bill because under the Bill, if a statute enacted before exit day is inconsistent with any part of retained EU law, the statute gives way. It is the supremacy of retained EU law—see Clause 5(2). So a concern about parliamentary sovereignty is no basis for excluding the EU Charter of Fundamental Rights from retained EU law. Legislation that is enacted after exit day will take priority over all retained EU law, which, if the amendment is passed, will include the charter. That is how the Bill asserts the sovereignty of Parliament, together with Clause 7, so this is a complete red herring. Amendment 15 has nothing whatever to do with the sovereignty of Parliament. The Bill deals with the sovereignty of Parliament in a perfectly acceptable way. It maintains the sovereignty of Parliament. We can do what we like after exit day, whether or not Amendment 15 is approved.

The noble Baroness, Lady Deech, criticised the drafting of the charter. However, in the context of a Bill that is designed to secure legal continuity on exit day, it cannot be right for noble Lords to point to individual provisions in the charter that they do not like or which are poorly drafted. The reason is that noble Lords could carry out the same exercise on every regulation or directive that is to be part of retained EU law and is being read across. Again, that is no basis for singling out the charter.

Then there were complaints from the noble Baroness, Lady Deech, and the noble Lord, Lord Faulks, expressing concerns about judgments by the European Court of Justice. Under Clause 6 of the Government’s own Bill, though, it is only judgments handed down before exit day that are binding, and only up to the level of the Supreme Court. Judgments that are given by the Court of Justice in Luxembourg after exit day are simply not binding on our judges; it is up to our judges whether they follow what the Luxembourg court may say in future. I emphasise a point I made in opening this debate: neither the noble Baroness, Lady Deech, the noble Lord, Lord Faulks, the Minister nor anyone else has given any examples of judgments given by the Court of Justice in Luxembourg on the charter to which they take exception.

Finally, the noble Lord, Lord Cavendish of Furness, told the House in a striking intervention—I hope I quote him correctly—that the good Samaritan did not need a bunch of lawyers to tell him what do. I say to him and to the House that, unfortunately, government and other public bodies often need to be told by judges what to do. I say to the noble Lord, Lord Shinkwin, that Parliament has often failed to protect fundamental rights. Without enforceable human rights, the victims of injustice and discrimination can and do go unremedied in the context of employment, equality or property rights. I say to the noble Lord, Lord Cavendish, and others on his Benches that if a Labour Government under Mr Corbyn were to be elected, they would be glad of the ability of courts to listen to human rights cases to secure remedies against arbitrary state action. They should think about that point, which I put forward as a Cross-Bencher.

As I said in opening this debate, to exclude the charter from retained EU law is unprincipled and unjustified. The House has heard no coherent defence of the Government’s position. I wish to test the opinion of the House.

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Lord Faulks Portrait Lord Faulks
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My Lords—

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I wonder whether, with the permission of the House, I might respond to the noble Lord, Lord Pannick. I appreciate that there may be other contributions, which I will seek to answer, but it may help the House if I indicate the Government’s position on the four propositions put forward by the noble Lord, Lord Pannick, so that we can be clear on the way forward. I shall seek to move government Amendments 23, 24 and 25, which directly address and respond to the concerns raised by many noble Lords when your Lordships last debated the matter in Committee. I hope that noble Lords will support those amendments; I note in passing that they bear a striking resemblance to Amendment 21, tabled by the noble Lord, Lord Pannick, and Amendment 22, tabled by my noble friend Lord Faulks, whom I cut across a moment ago.

For the avoidance of doubt, I want to make clear that the provision in Clause 6(2) does not seek to legislate to give effect to the content of a withdrawal agreement or implementation period. If there is a role for the Court of Justice as part of that agreement, as has been set out in the joint report on citizens’ rights, it would be legislated for under the separate withdrawal agreement and implementation Bill. I reiterate that Clause 6(2) has always intended to make clear that, after exit, UK courts will no longer be bound by future judgments of the Court of Justice. Instead, our courts will be free to take them into account when making their decisions, just as they would also be able to consider anything done by another EU entity or the EU itself. This approach reflects the Government’s core belief that our domestic courts are best placed to consider whether, and to what extent, to have regard to post-exit Court of Justice case law.

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Lord Goldsmith Portrait Lord Goldsmith
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My Lords, the noble Lord, Lord Spicer, has made a very interesting observation, but it seems to go wider than the amendments which the House is being asked to approve, so I shall not say anything about the issues that he has raised. He referred to the “remain tactics”. I am not aware that there are any remain tactics in relation to this amendment. On the basis that we are leaving, all the amendment is about is making sure that it works properly. That has certainly been the guiding principle as far as I am concerned.

On the formulation of the amendment, I do not want to use the word “helpful”, because that is the one word that I do not like—the noble Lord, Lord Faulks, knows that. The problem with “helpful” is that it is a little subjective. A noble Lord, who is not in his place so I shall not identify him, told me in the previous debate that he was going to say something. I said, “Okay. Is it going to be helpful?” He said, “You might think so”. Let me tell you that it was not helpful at all. He might have thought it was, which is the problem with “helpful”. In any event, I do not imagine that the courts will have regard to something that they do not think is helpful for the purpose of the issue before them, so I am happy with “relevant”. The important point is that it will not be perceived as a political decision being made by a court in wanting to follow a decision from the European court. That is the point that we were making in earlier stages on this part of the Bill, and I thank the Minister and his department for dealing with it.

That leads to the fourth question asked by the noble Lord, Lord Pannick, which was about the protection, safeguarding and upholding of the independence of the judiciary. We raised that on the previous occasion; it is hugely important. I join the noble Lord in congratulating the noble and learned Lord, Lord Keen, on coming out and supporting the judiciary at a time when others in government sadly were not. The assurance on that sought by the noble Lord, Lord Pannick, is important, and I am grateful that the noble and learned Lord has succeeded in answering it already—it was slightly out of turn, but it was good. I shall ask him to go a little further, because the obligation to uphold the independence of the judiciary does not rest just on the Lord Chancellor. I believe that the Constitutional Reform Act which set that out imposes that obligation on the whole of the Government, and it is important that it should. We cannot have a situation in which one Minister, in perhaps one of the more political jobs, is able to say unhappy and unhelpful things about the judiciary and think it okay because the Lord Chancellor will stand up and say, “We shouldn’t really be doing that; we should be protecting them”. It is important to recognise that it is the whole Government. I would single out as well the Attorney-General as one who should uphold the independence of the judiciary. When I was in that office, I certainly regarded it as part of my job, although the Lord Chancellor was in that primary position. I would be grateful if the Minister when he replies for the second time could touch on that point and see what assurance he can give.

The noble and learned Lord, Lord Thomas, raised an important point about ossification, as he put it, which is the one worry I have. As this structure works, so far as the Government are concerned, I think that the effect is that, in the areas to which the subsection would apply, the lower courts will be bound to follow decisions within that scope and it is only the Supreme Court that will be able to depart from them. That leads to the risk that the law will ossify and that cases will have to go to the Supreme Court which really do not need to because they are not that important—although it is important to clarify the law. The noble and learned Lord’s suggestion that the Government should look at the possibility of widening this so that the courts of appeal in different parts of the United Kingdom would be able to depart from what would otherwise be binding law is a good one.

I think that this suggestion would also be welcomed by some others—although I have not specifically raised this with them—who are worried about this provision. They are aware that there are rights—for example, in the field of workers’ rights—where there is some movement in EU law and are concerned that, as it stands, the retained EU law that we will have will lag behind what happens in other jurisdictions, which we all hope will still be partners, although not partners in the same Union. They are concerned that if this has to go to the Supreme Court it may create an unhappy difference between them. There may be circumstances where we all know that a particular piece of law is right for consideration by the top court, but it takes time to get there and it may not always get there.

I was going to ask the Minister whether he could give any assurances about how the Government would assist, at least where they are the other party, in getting cases to the Supreme Court where there is good reason to think that a relevant decision will be departed from. But it seems to me that opening this up to the courts of appeal would actually be a neater and more traditional way of doing that. I look forward to hearing what the Minister has to say about that. I should have mentioned at the outset that my name stands on the original amendments as well.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am obliged to noble Lords for the contributions that have been made. With respect to the point raised by the noble and learned Lord, Lord Goldsmith, about the position of the Lord Chancellor and the rest of the Government, perhaps I might repeat what I said earlier: I assure the House that the whole Government, the Lord Chancellor especially, steadfastly defend the independence of the judiciary. I believed I had said that before but I am happy to repeat it.

On this question of the ossification of the law, which has been raised, particularly by the noble and learned Lord, Lord Thomas—indeed, it is a matter that we have discussed—we have to remember that until exit only the Court of Justice of the European Union is in a position to see us depart from a previous decision of that court. The timeline for taking a case through the CJEU does not bear scrutiny in comparison with the timeline for taking a case to the United Kingdom Supreme Court. The feeling of the Government is that if we are removing the Court of Justice of the European Union, it is appropriate to put in its place the United Kingdom Supreme Court in that context, and that is what we have sought to do and what we intend to do.

That is a policy decision, I appreciate, and there is a suggestion that perhaps it can be brought down to the Inner House of the Court of Session, and the Court of Appeal. That has been considered, but we do not feel at this time that that is the right way forward, so I cannot give any reassurance that we intend to revisit that point. I feel that the decision we have made is the appropriate one in the circumstances but clearly we will have to consider in due course whether that gives rise to any difficulties with respect to the reference of cases to the Supreme Court.

As the noble and learned Lord, Lord Goldsmith, is aware, it is open to the Supreme Court to, in effect, accelerate cases that it considers to be of particular materiality of importance. Therefore, that facility is already available. But I have discussed this matter with the noble and learned Lord, Lord Thomas, and it is not our intention to revisit it before Third Reading. I hope that noble Lords will be able to support the government amendments.

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Moved by
23: Clause 6, page 3, line 34, at beginning insert “Subject to this and subsections (3) to (6),”

European Union (Withdrawal) Bill Debate

Full Debate: Read Full Debate
Department: Scotland Office

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Moved by
88A: Schedule 2, page 17, line 29, leave out from “under” to end of line 29 and insert “sub-paragraph (1) above”
Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, we are dealing here with truly technical amendments to ensure that the provisions of the Bill deliver the intended policy. They achieve two things. The first is to clarify how the requirement for regulations made by devolved Ministers under Schedule 2 to be within devolved competence interacts with the principle of severance applied by the courts.

The normal practice would be that when a Minister makes regulations that include, for instance, 10 different provisions, should one of those provisions be outwith the scope of the power, the courts would not strike down the regulations as a whole, they would simply sever the offending provision and allow the remaining nine provisions to stand as law. Some concerns were raised that the requirements in the Bill might imply that this standard practice should not occur. The amendments therefore make it clear that when a provision is outside devolved competence, only that provision would be ultra vires and not the whole instrument in which the provision is included.

The second purpose of the amendments is to allow for a devolved Minister and a UK Minister acting jointly to make provision that would not be in the competence of the devolved Minister acting alone. It has always been the Government’s intention that the Schedule 2 powers can be exercised jointly to allow us to work together in areas where we may need to make the same or related changes to retained EU law and so that, where appropriate, those changes can be subject to formal scrutiny and approval in both this Parliament and the relevant devolved legislature.

We believe it is right that, for instance, where a UK Minister and a Welsh Minister jointly make regulations in relation to a matter that concerns the England/Wales border, those regulations can include both the provision for England and the provision for Wales, even though it would not be within the Welsh Minister’s competence to make the provision in relation to England if they were acting alone.

We will also be bringing forward at Third Reading a number of further drafting changes to permit combinations of instruments beyond what is normally possible, reflecting the level of joint working that will be needed in relation to these powers. I will be speaking to the Government’s Clause 11 amendments shortly, when we reach the group beginning Amendment 89DA. I am sure noble Lords will appreciate that we have a number of further groups to get through on other parts of the devolution provisions before we reach that debate. The amendments provide what I hope to be welcome legal clarity. They reflect standard practice and the mechanisms for good, collaborative joint working between the Administrations. I beg to move.

Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness (LD)
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My Lords, I am grateful to the noble and learned Lord for his explanation of these technical amendments. Can he say whether there is agreement among the devolved Administrations and the UK Government on these amendments?

Lord Griffiths of Burry Port Portrait Lord Griffiths of Burry Port (Lab)
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My Lords, at last we have reached this stage, although I find it a little off-putting that we are coming to consequential, technical matters before we look at the meaty issue; but that will come, as was said.

I would like to pay the respects of those on our Benches to the serious way in which the Government have contributed through the joint ministerial group to the success of the proposals, and thank them for bringing them to us now. I would also like to thank Mark Drakeford from the Welsh Government and Mike Russell from the Scottish Government for the part they played, even if the latter has thus far been unable formally to sign up to the inter-governmental process. As the Minister said, we are going to discuss Clause 11 and neither of us can wait for that. It is coming in more detail later this evening. However, we on these Benches recognise and appreciate the progress that has been made. We have come a long way since the Bill was published and it is against that backdrop that this and subsequent groups of amendments should be considered.

The Labour Party has always been the party of devolution. While we will be watching the Government’s treatment of the devolved Administrations very closely throughout the Brexit process—that is our job—we recognise the genuine progress that has been made and welcome the amendments in this group. They allow United Kingdom and devolved Ministers jointly to exercise powers in Schedule 2 in order to make provisions that could not be made by a devolved Minister acting alone. This clarifies the use of so-called composite instruments, as the Minister said, and we hope paves the way for collaborative working between the devolved Administrations and the UK Government.

Other amendments in the group improve the position regarding ultra vires provision within instruments made under Schedule 2. I believe that the devolved Administrations previously raised concerns with the Government as to whether the courts would permit those parts of an instrument that were within competence to remain law. We are glad that Ministers and officials have responded positively to the appeals from the devolved bodies and that the amendments provide greater clarity for all involved. The group amounts to just one piece in the jigsaw puzzle. I usually start my jigsaws with the edge pieces. This looks like putting a piece in the middle and working around it in due course. It is a piece that these Benches are happy to support.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I am obliged to the noble Lord, Lord Griffiths, and note his comments. The amendments will provide not only clarity but a much needed flexibility when it comes to the application of the schedules.

With respect to the point raised by the noble and learned Lord, Lord Wallace of Tankerness, my understanding is that both devolved Administrations were content with the proposals. Indeed, much of the force for the first group of amendments came from them. I hope that satisfies noble Lords.

Amendment 88A agreed.
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Moved by
88B: Schedule 2, page 17, line 30, leave out from “8” to end of line 35
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Moved by
89ZZA: Schedule 2, page 17, line 37, leave out “regulations” and insert “provision”
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Moved by
89ZA: Schedule 2, page 23, line 14, leave out paragraphs 13 to 20
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Moved by
89AA: Schedule 2, page 26, line 25, after “taxation” insert “or fees”
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Moved by
89DA: Clause 11, page 7, line 25, leave out subsections (1) to (3) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for the Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 30A(1)”.(2) After section 30 of that Act (legislative competence: supplementary) insert—“30A Legislative competence: restriction relating to retained EU law(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Parliament.(3) A Minister of the Crown must not lay for approval before each House of the Parliament of the United Kingdom a draft of a statutory instrument containing regulations under this section unless— (a) the Scottish Parliament has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Parliament having made such a decision.(4) For the purposes of subsection (3) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Parliament first makes a decision falling within any of paragraphs (a) to (c) (whether or not it subsequently makes another such decision).(5) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—(a) provide a copy of the draft to the Scottish Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(6) See also paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Parliament).(7) No regulations may be made under this section after the end of the period of two years beginning with exit day.(8) Subsection (7) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.(9) Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Scottish Parliament which receives Royal Assent after the end of that period.(10) Subsections (3) to (8) do not apply in relation to regulations which only relate to a revocation of a specification.(11) In this section—“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Scottish Ministers,and, in calculating that period, no account is to be taken of any time during which the Parliament is dissolved or during which it is in recess for more than four days.”(3) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for the National Assembly for Wales to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 109A(1)”.(3A) After section 109 of that Act (legislative competence: supplementary) insert—“109A Legislative competence: restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the Assembly’s legislative competence. (3) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.(4) A Minister of the Crown must not lay a draft as mentioned in subsection (3) unless—(a) the Assembly has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Assembly having made such a decision.(5) For the purposes of subsection (4) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Assembly first makes a decision falling within any of paragraphs (a) to (c)(whether or not it subsequently makes another such decision).(6) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—(a) provide a copy of the draft to the Welsh Ministers, and(b) inform the Presiding Officer that a copy has been so provided.(7) See also section 157ZA (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Assembly).(8) No regulations may be made under this section after the end of the period of two years beginning with exit day.(9) Subsection (8) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.(10) Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Assembly which receives Royal Assent after the end of that period.(11) Subsections (4) to (9) do not apply in relation to regulations which only relate to a revocation of a specification.(12) In this section—“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the Welsh Ministers,and, in calculating that period, no account is to be taken of any time during which the Assembly is dissolved or during which it is in recess for more than four days.”(3B) In section 6(2)(d) of the Northern Ireland Act 1998 (no competence for the Northern Ireland Assembly to legislate incompatibly with EU law) for “incompatible with EU law” substitute “in breach of the restriction in section 6A(1)”.(3C) After section 6 of that Act (legislative competence) insert—“6A Restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown. (2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Assembly.(3) A Minister of the Crown must not lay for approval before each House of Parliament a draft of a statutory instrument containing regulations under this section unless—(a) the Assembly has made a consent decision in relation to the laying of the draft, or(b) the 40 day period has ended without the Assembly having made such a decision.(4) For the purposes of subsection (3) a consent decision is—(a) a decision to agree a motion consenting to the laying of the draft,(b) a decision not to agree a motion consenting to the laying of the draft, or(c) a decision to agree a motion refusing to consent to the laying of the draft;and a consent decision is made when the Assembly first makes a decision falling within any of paragraphs (a) to (c)(whether or not it subsequently makes another such decision).(5) A Minister of the Crown who is proposing to lay a draft as mentioned in subsection (3) must—(a) provide a copy of the draft to the relevant Northern Ireland department, and(b) inform the Presiding Officer that a copy has been so provided.(6) See also section 96A (duty to make explanatory statement about regulations under this section including a duty to explain any decision to lay a draft without the consent of the Assembly).(7) No regulations may be made under this section after the end of the period of two years beginning with exit day.(8) Subsection (7) does not affect the continuation in force of regulations made under this section at or before the end of the period mentioned in that subsection.(9) Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Assembly which receives Royal Assent after the end of that period.(10) Subsections (3) to (8) do not apply in relation to regulations which only relate to a revocation of a specification.(11) Regulations under this section may include such supplementary, incidental, consequential, transitional, transitory or saving provision as the Minister of the Crown making them considers appropriate.(12) In this section—“the relevant Northern Ireland department” means such Northern Ireland department as the Minister of the Crown concerned considers appropriate;“the 40 day period” means the period of 40 days beginning with the day on which a copy of the draft instrument is provided to the relevant Northern Ireland department,and, in calculating that period, no account is to be taken of any time during which the Assembly is dissolved or during which it is in recess for more than four days.””
Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, to be clear, the noble and learned Lord, Lord Wallace, indicated that he was not going to move Amendment 89, but government amendment 89AA was to follow from that amendment so I would just like to address our amendment in order to avoid confusion. I am afraid that this is like one of those smart restaurants where you get a series of amuse-bouches before you get to the main course.

Amendment 89AA replicates the restriction that we have already applied to Clause 9 on the withdrawal agreement power in relation to imposing fees and charges for the corresponding power for devolved Ministers. This follows exactly the same rationale as the Clause 9 power. It has never been our intention for these powers to be used to impose fees; that is the preserve of the bespoke Schedule 4 powers, which are exercisable by devolved Ministers and should be subject to the limits that apply to those powers. This same restriction has already been applied to both the correcting power in Clause 7 and its Schedule 2 equivalent. The devolved Administrations were informed in advance of our intention to apply this restriction to that power and have agreed to its effect, so I hope noble Lords will support the amendment.

I turn to Amendment 89DA and the group that follows it. I thank noble Lords for their constructive engagement on this important issue during the passage of the Bill. The Government have now tabled a comprehensive set of amendments to Clause 11. We have worked with the Scottish and Welsh Governments to develop them, and noble Lords will recognise that we have drawn heavily on their consideration of our initial amendments in Committee. I put on record our thanks to this House, and to the Scottish and Welsh Governments for their endeavours in crafting these amendments. We are immensely pleased that the Welsh Government have agreed this approach and I am of course disappointed that the Scottish Government have not. I hope they will sign up in due course.

The intention behind Clause 11 as originally drafted was to provide maximum legal certainty across the UK to our communities and businesses after EU exit in areas that are subject to a common EU framework. As the Welsh Government aptly put it,

“it is essential to provide legislative continuity at the point at which the UK leaves the EU”.

We know, of course, that the EU has common legislative arrangements across a vast range of areas, but we must now decide in which policy areas we may need to continue those common arrangements legislatively, informally or not at all. To provide the time to do that work and provide assurances that there would not be immediate divergence across the UK, the original Clause 11 sought to freeze the law in all those areas.

We are all familiar with the views of the devolved institutions on this clause, and of course the Government have accepted the case for a more targeted and proportionate approach. This has been supported by the work that we have been doing with the devolved Administrations on assessing these current frameworks. Since we agreed the framework principles, which set out why common approaches may be needed across more than one part of the UK, our Governments have worked closely to analyse those policy areas that sit across devolved competence and EU law.

Noble Lords will recall that in March we published our initial analysis. It demonstrated that our work with the devolved Administrations indicated that legislative frameworks may be needed, in whole or in part, in only 24 of the 153 areas that had been identified, and 82 areas could be managed through more informal, non-legislative arrangements. The remaining 49 areas would likely require no further arrangements at all. We also agree that where common approaches are needed, they cannot all be designed and implemented by exit day. So it continues to make sense to maintain existing frameworks and provide certainty over which areas may be subject to change in the future, but we can and should do this in a more measured way.

Our amendments in Committee set out targeted mechanisms for doing so, following discussions with the Scottish and Welsh Governments. We have carried forward the basic proposition from Committee and have built on that in the amendments that we have put forward today. Our amendments would see powers returning from the EU in otherwise devolved areas pass directly to the devolved institutions. Where a common legislative framework may be required, we propose to freeze the current arrangements to provide the time to establish our own framework for the UK. This would apply only to those policy areas that have been explicitly frozen through regulations, rather than across all policy areas where EU law currently creates common frameworks. That was the proposal that we put forward in Committee and that we had been discussing with the Welsh and Scottish Governments. We withdrew our amendments because discussions with those Governments were ongoing and we were committed to continuing them. Our Committee proposal was a substantial, but not a final, offer. It meant that noble Lords were able to debate the very latest proposition and inform those discussions.

One theme raised here and by the devolved Administrations was consent. The devolved Administrations thought it right that there was a role for the devolved legislatures in deciding whether specific areas should be the subject of a freeze. We also heard that in the debate in this House. This House agreed that a role for the devolved legislatures was important in this process, but that it must be balanced against preserving the right—indeed, I would say, the responsibility —of the United Kingdom Parliament to act, where there may be a cross-United Kingdom impact. Only the UK Parliament can do that.

The Government listened carefully to the submissions on this matter and reflected them in discussion with the devolved Administrations over Easter. We have amended the Committee proposal. We shall seek to agree which areas should be subject to a freeze. This is part of the bigger frameworks question that we continue to progress.

We should also have the view of the devolved legislatures, not just the Administrations. Our amendments ensure that, before the UK Government may lay regulations in draft in this House, they must have sent them to the devolved Administrations and sought the consent of the legislatures. The devolved legislatures will have 40 days in which to decide whether to give or withhold consent for the regulations. Only after that decision is given or the 40 days have passed can the United Kingdom Government lay the regulations before Parliament. This process is built on collaborative working. It favours agreement for freezing areas, but also recognises that if agreement cannot be reached, it must be for the UK Parliament to decide what is in the interests of the UK as a whole.

We believe that this approach should minimise areas of disagreement, as we have also developed a comprehensive intergovernmental agreement that supports and complements the legislative amendments we are considering today. It emphasises that we will work on these regulations together and in advance of sending them to the devolved Administrations formally.

Where there is unavoidable disagreement and the United Kingdom Government consider that they must proceed in the absence of consent from a devolved legislature, UK Ministers would be under an express legal duty to provide this Parliament with a Statement, and, if provided, a statement from the devolved Administration on why consent was not being granted. The UK Minister will be under a duty to explain to Parliament why the Government consider that they must proceed without that consent. Parliament will decide on the case presented: whether it is indeed in the best interests of the United Kingdom to freeze a specific policy while we implement new arrangements.

I should also remind noble Lords of the additional reporting duties on UK Ministers. I do not wish to repeat the detail that I provided to the House on them in Committee. Needless to say, they ensure heightened accountability by providing transparency to the process of developing frameworks, the use of the regulation-making powers and where frameworks are maintained in the short term. They will also require us to report on those principles that underpin this work, the principles agreed between the United Kingdom, Scottish and Welsh Governments at the Joint Ministerial Committee in October last year. Through this, our work on future frameworks is open to the scrutiny of this Parliament and of the devolved legislatures.

The other key change to the amendments that I should mention, as compared to the proposals that noble Lords considered in Committee, is the addition of sunset provisions for both the new powers and the regulations made under them. This was raised explicitly by noble Lords in Committee. We have always said that any freeze under Clause 11 would be temporary. The amendments place that beyond doubt by making it explicit in law.

I am grateful to noble Lords for the constructive manner in which they have engaged with the question of sunsets. In particular, I must give due credit to the noble and learned Lord, Lord Wallace, for the tenacity with which he has pursued this, including by tabling his amendments. I hope that he will be satisfied that his concerns in this respect have been addressed and will feel able not to press those amendments.

The powers last for only two years from exit day. This aligns them with the other powers in the Bill and makes certain that they will not be an ongoing mechanism for limiting competence. The regulations will also be time-limited. We have had in-depth discussions with the devolved Administrations on how long is needed to determine and implement our future frameworks. We have settled on a period of five years from when regulations come into force.

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I note that the noble and learned Lord, Lord Mackay, in presenting his amendment in Committee, and in his earlier contribution, highlighted the necessity for Parliament to act as a backstop if, despite collaborative processes designed to lead to agreement between the UK and the devolved Governments, discussions ended in deadlock. This contention, which commanded widespread support across the House in Committee, is one at the heart of our current constitutional settlement. We rejoice at the place we have reached, which is honest, open and takes things forward. In the spirit of wanting a legal system that is functioning, and well, the day after Brexit, it is a noteworthy contribution to that progress.
Lord Keen of Elie Portrait Lord Keen of Elie
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I am most obliged to noble Lords for their contributions to this debate. I am essentially moving a series of very complex and extensive amendments to the Bill, from Amendment 89DA through to Amendment 92AD, with consequential amendments from Amendment 89DB through to Amendment 117C. The noble and learned Lord, Lord Wallace, has moved his own amendments on sunsetting constraints, which I shall address; and the noble and learned Lord, Lord Hope, has moved extensive amendments from Amendment 89DAA through to Amendment 92BBA—and, indeed, could have extended his Motion for amendment further than that, I suspect.

At the heart of this lies a simple principle. The EU has developed and maintained a single market for the benefit of the members of the Union. As we exit the EU, we are anxious to maintain a single market for the benefit of the union of the United Kingdom. That is what it comes to. In doing that, we must of course respect the devolution settlement and the position of the devolved entities and parliaments, whether in Scotland, Wales or Northern Ireland—even though at present it is not sitting as an Executive, which we acknowledge.

I am not going to address the original Clause 11. Noble Lords have expressed their views on that and I do not need to either add to them or necessarily rebut them; we are anxious to move on, and to move this amendment. What are we intent on doing? Well, I would counter the suggestion from the noble Lord, Lord Wigley, that this is a power grab. Such rhetoric has been thrown about before, of course, and I do not feel that it would advance matters to engage with that sort of rhetoric. I just remind noble Lords of the terms of the amendment itself. If your Lordships have the Marshalled List of amendments, at page 7—or, for the noble Lord, Lord Wigley, page 8, where it refers to Wales—I simply read out proposed new Clause 30A(1):

“An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown”.


We know that there is then an elaborate process for the making of those regulations; the noble Lord, Lord Thomas of Gresford, referred to the stages that would be gone through in the making of those regulations. Let us then look at subsection (2):

“But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Parliament”.


There is no intention here to intrude upon the existing legislative competence of the parliaments. But of course, as powers come back, it is necessary to consider which of those powers have to be maintained in order that we can have a functioning internal market in the United Kingdom. That is the objective and what we seek to do. All powers pass to the devolved Administrations on exit day where no regulations have been made under the proposed amendment. That is the right policy outcome that we have agreed with the Welsh Government and which we still seek to agree— I emphasise still—with the Scottish Government.

That takes us on to the question of how the frameworks have been arrived at. Noble Lords will recollect that, at the Joint Ministerial Committee in October last year, the principles to be applied were agreed by all those attending: the Welsh Government, the Scottish Government and the United Kingdom Government. I just add in response to a point raised by the noble and learned Lord, Lord Wallace, that where he finds reference in the amendments to “principles”, that refers to the principles that were agreed at that stage and are carried over in the agreements. At the present time, we have identified 24 areas of retained EU law—or what will be retained EU law—where we require frameworks to maintain an internal United Kingdom market. There is debate about some additional areas, which will have to be addressed in due course. We have focused our attention now on 24; it may be fewer at the end of the day, as we talk our way through them, because they apply only to particular areas of policy, not to one general area. We are not talking about agriculture or fisheries, we are talking about discrete aspects of these policy areas that are perceived to be necessary in order to maintain the UK internal market.

Perhaps before I move on, because a number of noble Lords have raised the point, I should address the question of how the regulations will operate. That can be seen from the proposed amendment, and there are two elements to it. Proposed subsection (7) says:

“No regulations may be made under this section after the end of the period of two years beginning with exit day”.


That is the first period of two years. If no regulations have been made in respect of what is perceived to be a necessary framework, no regulations will be made. Proposed subsection (9) says:

“Any regulations under this section which are in force at the end of the period of five years beginning with the time at which they came into force are revoked in their application to any Act of the Scottish Parliament which receives Royal Assent after the end of that period”.


Therefore, in so far as we have not taken that forward, these powers will then revert to the appropriate authority.

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Lord Wallace of Tankerness Portrait Lord Wallace of Tankerness
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It seems that we have an explanation. Were officials of the Scottish Government involved in that and, if in-depth work has been done, would the Minister help the House by publishing it?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am not in a position to say that such work would be published, because of course it has been on the basis of engagement between officials dealing with this. I do not believe that there is any official report to that effect; it is just a matter of the product of engagement between officials negotiating these matters. Therefore I cannot indicate that we will publish anything in that regard. That is to try to explain the position with regard to the sunset clauses in the regulations. I turn to the question—

Lord Thomas of Gresford Portrait Lord Thomas of Gresford
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The Minister was about to tell us about the gap my noble friend introduced between exit day and the making of the regulations.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble Lord. There may be a situation in which powers go to the devolved Administrations and yet they do not deal with those powers, and it may be considered that upon further consideration there are additional areas where frameworks ought to be based on a UK-wide determination and where regulations would be made. But as the noble Lord himself observed, that regulation-making process would involve us consulting the Scottish and Welsh Governments—and, I hope at that stage, a Northern Ireland Executive—so that we could secure their consent. Only if there was a failure to secure the consent would the matter go forward to this Parliament, with two clear safeguards. First, the Minister of the Crown would have to explain to Parliament why he was seeking to make those regulations without the consent of a devolved Administration, and secondly, there would be an opportunity for the devolved Administration to make their representations to this Parliament as to why they felt it appropriate to withhold their consent. But, as I said, there may be a period after exit when it occurs to parties that it might be appropriate to proceed in that way.

Turning to the question of where we are with the Scottish Government, I begin by saying that the door—

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard (CB)
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Before the noble and learned Lord moves on, did I miss it or has he answered the point made by the noble and learned Lord, Lord Mackay, on when the sun will rise before it spins across the sky for five years? When does it start? Is it with the particular regulation?

Lord Keen of Elie Portrait Lord Keen of Elie
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I am obliged to the noble Lord, Lord Kerr. My understanding is that the five-year period will commence from the point at which the regulation is made.

Lord Kerr of Kinlochard Portrait Lord Kerr of Kinlochard
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So in practice we could be looking quite a long way ahead—it is five plus X.

Lord Keen of Elie Portrait Lord Keen of Elie
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I am tempted to mention here the noble Countess, Lady Mar.

None Portrait Noble Lords
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Oh!

Lord Keen of Elie Portrait Lord Keen of Elie
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But I will not. If the noble Lord wishes me to elaborate on the operation of the sunset clauses, I would be quite content to write to him. At this stage, perhaps I can continue—with the encouragement of the noble Lord, Lord Griffiths—to address the question of the Scottish Government.

We are extremely grateful that we have achieved consensus with the Welsh Government and will be able to take this forward with their wholehearted agreement. I will come on to one or two points raised by the noble and learned Lord, Lord Morris, in a moment. As far as we are concerned, the door is still open for the Scottish Government, and we would be anxious to see them come through it so that we can take this forward with the agreement of all the Administrations in the United Kingdom. However, we are where we are at the present time. As regards their proposed amendments, they would, by different routes, result in a situation in which one of the devolved Administrations would effectively hold a veto over the implementation of UK-wide legislation for the maintenance of the UK internal market. That, I respectfully suggest, could not and would not be appropriate.

The exit from the EU raises complex questions with regard to the construction and application of the Scotland Act 1998 because, in 1998, such an exit was never contemplated. Reference has been made to Schedules 4 and 5 to the Scotland Act 1998 and the mechanisms for their amendment, but, as we were reminded by the noble and learned Lord, Lord Wallace, those are not the only mechanisms that impact upon the competence of the Scottish Parliament. We have to look at the terms of Section 29 of the 1998 Act, which as the noble and learned Lords, Lord Wallace and Lord Mackay, observed raises issues with regard to territoriality in respect of the competence of the Scottish Parliament. I do not want to go into the detail of that at present, but one notices that its competence is limited in that respect, and by reference to EU law as well. Therefore, we do not consider that, at the end of the day, we can appropriately accept a situation in which the devolved Administration can exercise a veto over the exercise of power by the United Kingdom Parliament in situations where it is being exercised for the benefit of the UK as a whole. I hope that that goes some way to explaining, without looking at the complexities of the 1998 Act, why we do not feel we are in a position to accept the position expressed by the Scottish Government on this point.

We simply regret the fact that, despite the very significant efforts—I underline “significant”—of the representatives of the Welsh Government and the Scottish Government in producing an outline agreement, it has not been possible to persuade the Scottish Government to join us on that point.

The noble Lord, Lord Wigley, suggested that this might reflect a lack of trust. As I have observed on previous occasions, this is not an issue of trust. This is an issue of constitutional propriety. Whatever view one takes of the devolved settlement and of where we are with regard to the legislation on that, at the end of the day it is not appropriate to accept that one of the devolved Administrations could effectively exercise a veto over legislation for the benefit of the other members of the Union—namely England, Wales and Northern Ireland.

Lord Wigley Portrait Lord Wigley
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I thank the Minister for the detail in which he is responding to this debate and the work that he has undertaken. None the less, there may be issues such as the sheep meat regime, which we have used in a number of circumstances as an example where the differential impact of policies in one area such as Wales may be much greater than the impact in other areas. To that extent, the wishes of the Welsh Government in that context should have a greater weight, in the same way as when Welsh Ministers represent the UK in the Council of Ministers to discuss the sheep meat regime. Is it not possible to fine-tune the Government’s proposals to enable that happen?

Lord Keen of Elie Portrait Lord Keen of Elie
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With respect, I must say that it is our clear intention, which is reflected in the memorandum of understanding in the agreement, that we will engage with the devolved Administrations in the consideration of these framework agreements and their application. Of course, these matters will be taken into account at that stage. But I do not consider it appropriate to bring that sort of granular detail into this Bill, which is designed for a very specific purpose. I hear what the noble Lord says and, clearly, we wish to proceed on the basis of mutual respect and understanding with the other devolved Administrations.

In that context, I underline the point in response to a query raised by the noble and learned Lord, Lord Hope, speaking, I understand, on behalf of the Scottish Government who are not otherwise represented in this House. There is no question of this process under Clause 11 being somehow the thin end of the wedge so far as the devolution settlement is concerned. The devolution settlement is a reality of our constitutional situation and one that we extended under the 2016 Act, really quite recently, in light of the Smith review. We continue to respect, understand and wish to apply the devolution settlement. But it is a devolution settlement that has to work for everyone in the United Kingdom. I return to the point that it cannot work for everyone in the United Kingdom if one devolved Assembly or Government assume that they have the ability to exercise what amounts to a veto over legislation that is relevant, pertinent and important to the entirety of the United Kingdom.

I move on to address one or two additional points raised by noble Lords in respect of these matters. The noble and learned Lord, Lord Morris of Aberavon, referred to finance and whether the Welsh Government had missed a trick. I do not believe that they did for a moment. Indeed, they put themselves one step ahead by embracing this agreement and the amendment. But the noble and learned Lord raised a point about funding. He is right to point out that our agreement for the Welsh Government does not speak to funding but that is not to say that funding has been forgotten or put to one side. Clearly, it is a matter that will be addressed. We recognise the importance, for example, of the Barnett formula. We understand why there is concern, particularly about agricultural funding under CAP Pillar 1 under the current EU budget that runs to 2020. We have provided a degree of certainty by promising to continue to commit the same total cash funds for farm support across the UK until 2022. At present, the Secretary of State for the Environment is in close discussion with his counterparts in the Welsh and Scottish Governments on exactly how our agricultural systems should work outside of the EU. I stress that that is not a matter for this Bill. This is the Bill that provides for our exit and our exit alone, so I hope that the noble and learned Lord will accept that. He raised the question of public procurement—again, these issues are not for this Bill but we are clearly conscious of them and they will have to be addressed.

The noble Lord, Lord Griffiths, also raised the question of whether further areas might be the subject of reservation under the freezing provisions of the amendment. We have identified 24 areas for frameworks but a number of other areas that could be the subject of regulations going forward are still subject to discussion. I acknowledge that. Noble Lords may recollect that we published the list of frameworks and included not only the 24 areas I have referred to, but a further 12 where there is ongoing discussion about how they will be addressed and resolved.

I am conscious that I have not answered every question that has been posed. If noble Lords are concerned that I have not addressed a point that still concerns them about Clause 11, as amended, I would be content to receive their queries and write to them. In the event that I write to any noble Lords on this issue or any issue relating to this clause, I will place a copy in the Library. I seek to reassure noble Lords on that point. With that, I will formally move each amendment. I am sorry—the noble and learned Lord, Lord Hope, has to reply.

Lord Hope of Craighead Portrait Lord Hope of Craighead
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My Lords, it is for me to say what will happen to my Amendment 89DAA, which is an amendment to Amendment 89DA, moved by the noble and learned Lord the Minister.

I want to make a few short points. First, I want to pick up on a remark made by the noble Lord, Lord Thomas of Gresford, that he will not accept the opprobrium that was visited on the Scottish Ministers for the way they conducted themselves in these negotiations. Having had discussions with Michael Russell and the Lord Advocate—like the noble and learned Lord, Lord Mackay of Clashfern—the points I put forward in my introduction to my amendment were sincerely held. Those points were not made to cause trouble. The Lord Advocate in particular gave advice on his reading of the Scotland Act; Michael Russell, for his part, was entirely genuine in his points about principle as well. That should be clearly understood.

When I was in practice at the Scottish Bar, I was junior to the noble and learned Lord, Lord Mackay of Clashfern. As he pointed out, if I appeared with him, I would speak first; it would then be his function, as my senior, to speak second. Quite frequently, I found that when he spoke, he refined the kind of argument that I was attempting to put forward. It took on a slightly different—rather more attractive, perhaps—appearance after he had refined it. As he pointed out in his speech, the points that I made about the construction of Section 30 and the other sections do not really apply in the situation with which we are dealing here. I was grateful for his remark that the situation is unique and not seeking in any way to undermine the devolution settlement. I am extremely grateful to the Minister for making the same point that there is no question of this being the thin end of the wedge or in any way seeking to undermine the devolution settlement, to which he wishes to adhere. These remarks should help a lot in reassuring those in Scotland on how they should approach the continuing discussions. I was glad to hear from the Minister that the door is still open; I think that the Scottish point of view still regards the door as open too.

Perhaps this debate has refined things and shown that the purist argument—that of principle—does not really apply here. This is not about trying to construct the market that we were trying to construct in 1998, which was done by separating out the bits that mattered for that market into Schedule 5 so that they were clearly identified. We are dealing with a different, rather more subtle, situation in trying, as the Minister said, to create a functioning internal market with what has come back to us from Europe. That requires a rather more subtle approach that is not really dealt with in the Scotland Act, for understandable reasons. That being so, I hope very much that the way forward will be pointed by our discussion this evening. Without any further ado, I beg leave to withdraw my amendment.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I intervene to raise a point that I have spoken to the clerk about. Noble Lords might recollect that earlier in the evening I gave a passing imitation of a rabbit in headlights. The reason for that was that it appeared to me that the amendments in group three had been moved and agreed without me speaking to them—which is absolutely ideal, as far as I am concerned. They are highly technical amendments, but I felt I should mention that to the House, lest any noble Lord wishes me to speak to them. As I said, they have been agreed, but noble Lords did not have an opportunity to hear my dulcet tones on the subject.

Amendment 89DAA, as an amendment to Amendment 89DA, withdrawn.
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Lord Hope of Craighead Portrait Lord Hope of Craighead
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My Lords, I have put my name down in support of the amendment. The arguments which led me to do that are those which I set out when I was moving my amendment earlier this evening, so I need not take up the time of the House in repeating them. What I said earlier is the full explanation as to why I put my name down.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I thank the noble Lord for his amendments, which are pertinent given the different positions of the Scottish and Welsh Governments and the imminent timing of votes in their legislatures that will address consent.

The Government have been clear that they wish to make the positive case for consent for this Bill. We have not just talked about our commitment to making that case but have shown it. We have engaged in extensive discussions with the devolved Administrations and have now introduced the amendment to Clause 11 that we have just discussed at some length to try to meet the expectations of the devolved legislatures. I hope that the noble Lord, Lord Wigley, will accept that our commitment to the legislative consent process is reflected in the agreement that we struck with the Welsh Government last week.

This is the legislative consent process in action. We have put forward policy objectives; we have worked through the differences, and we have found an appropriate compromise. As a result, the Welsh Government have recommended that the National Assembly for Wales grant legislative consent to the Bill when it votes on this matter, I believe, on 15 May. The Welsh Government agree that our amendments now strike the right balance between providing legal certainty and maximising assurances to the devolved legislatures on how we will jointly manage the process of powers returning from the EU in otherwise devolved areas. Of course we are disappointed that we have not been able to reach the same agreement with the Scottish Government, but this, I suggest, is not for want of trying. I stress again that time remains for the Scottish Government to join this agreement, so that we can all demonstrate that we have done what we consider to be the responsible thing in this context.

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Lord Wigley Portrait Lord Wigley
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I ask for one point of clarification from the Minister. Does he not accept that there is a real danger of confusion in the public mind between allowing a consent order and actually getting consent? In other words, the process can be one where consent is given, is not given or is refused, but whichever of those three outcomes it is, the process can still go on for a parliamentary resolution here by order; and we know that orders, in the House of Commons and here, go through on the nod most of the time. Is that not a deception, giving the impression that there is a consent mechanism when, in fact, it is a pretty meaningless one?

Lord Keen of Elie Portrait Lord Keen of Elie
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I simply do not accept the noble Lord’s characterisation of the matter. It is clearly the case that where consent, for example, was sought and not obtained, it would be necessary for the Minister of the Crown to address that, very clearly and specifically. There would be the opportunity, as there always is, for the devolved Administration to make their own views clear as to why they had declined consent. I do not believe that this is in any sense deceptive, misleading or a mirage. These are constitutional requirements that are adhered to and that will be adhered to. It would not be appropriate to introduce the sort of amendment moved by the noble Lord that would, in effect, tie the hands of this sovereign Parliament, so far as this exit process is concerned. Whatever view one might take about the merits of exit, that is neither here nor there. This is a constitutional principle with regard to the sovereign Parliament of the United Kingdom when it comes to legislate for the benefit of the entirety of the United Kingdom. I therefore urge the noble Lord to withdraw his amendment, and indicate that I would not expect to return to this matter at Third Reading.

Lord Wigley Portrait Lord Wigley
- Hansard - - - Excerpts

I am very grateful to the Minister. I have heard that form of words from his colleagues in the past. Clearly, this is a matter on which there may be a difference of opinion. I realise the need for there to be coherence on a UK scale but there are matters which have a specific effect in Wales, Scotland or Northern Ireland where their interests need to be taken into account. Clearly, we are not going to make progress on this tonight. Therefore, on the basis of the discussion we have had, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018

(5 years, 10 months ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-R-VI Sixth marshalled list for Report (PDF, 210KB) - (3 May 2018)
Lord Goldsmith Portrait Lord Goldsmith
- Hansard - - - Excerpts

My Lords, this amendment deals with a point that we raised and discussed in Committee. It may be that this group will not take too long, although that will depend upon what the Minister has to say. The important point about this is that the Bill as drafted would mean that at the moment Royal Assent was given, certain things would happen, including that the jurisdiction of the CJEU would come to an end. We raised the point that, given that it appeared likely that during an implementation period the Court of Justice of the European Union would continue, by agreement, to have certain jurisdiction, it would be important not to see the CJEU’s jurisdiction fall off a cliff edge, as it were. It may be that the noble and learned Lord the Minister will be able to reassure us that they will deal with this so as to ensure that if the CJEU continues to have jurisdiction in certain circumstances—which, as I say, I believe is a likely outcome of the continuation of the discussions—the Bill will not have taken away the ability to do that.

Amendment 109 would not allow Clause 6—which, among other things, brings the CJEU’s jurisdiction to an end—to come into effect until,

“the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.

The amendment focuses on transitional arrangements that are in fact agreed, not hypothetical arrangements. It would achieve no mischief because transitional arrangements would in fact be agreed and we would be saying simply that the jurisdiction of the CJEU should not come to an end until the end of that period.

The Minister may put forward some alternative way of achieving the same effect. I will listen very carefully, as will other noble Lords, to what he has to say about that. For the time being, I beg to move.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
- Hansard - -

My Lords, in light of the observations made by the noble and learned Lord in moving this amendment, I will make one observation at this stage in response to his invitation to me.

Part Four of the withdrawal agreement so far agreed between the United Kingdom and the EU sets out:

“During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union”.


That would mean that during the implementation period—assuming that that is actually agreed—the CJEU will continue to fulfil the role it currently does with regard to the UK’s legal structure. This effect will be provided for under the withdrawal agreement and implementation Bill. I do not know whether that assists the noble and learned Lord but that is the position as set out.

I add only that given the terms of the noble and learned Lord’s amendment—and I appreciate that it has been deliberately framed in this way:

“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 transitional arrangements agreed between the United Kingdom and the European Union”,


if that amendment was passed, it would throw into doubt what would happen if there were no transitional arrangements. That is not an outcome that we seek but it is a distinct possibility and would mean either that Section 6 did not come into force at all or that potentially we would be thrown back into the billowing mists of uncertain inference. So I have that objection but I thought it might assist noble Lords if I made clear our position with regard to the implementation period. I hope that that responds to the noble and learned Lord’s observation.

Lord Goldsmith Portrait Lord Goldsmith
- Hansard - - - Excerpts

My Lords, I cannot agree with the point raised by the Minister about the wording of the amendment. The amendment says that a day may not be appointed,

“unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.

If in fact no arrangements have been agreed between the United Kingdom and the European Union, it would seem that effect could be given to the amendment.

Be that as it may, the important point is that, as I understand it, the Minister has said two things. He has said, first, that if an implementation agreement is agreed, it will include continuing jurisdiction of some sort for the Court of Justice of the European Union and, secondly, that the Government will make sure that that jurisdiction is provided under the terms of legislation to be brought forward; I think the implementation Bill is what the Minister has in mind. If that is right and the Government are telling us that they intend that legislation will incorporate a continuing jurisdiction if that is agreed, that would deal with the mischief that this amendment was designed to deal with.

If that is the position—it would be very helpful if the noble and learned Lord could confirm whether it is—I would then be able to beg leave to withdraw the amendment. I am watching his body language but I have been fooled by that before, so I would be grateful if he clarified whether what I have said is right.

Lord Keen of Elie Portrait Lord Keen of Elie
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It is of course the position that there is no certainty that there will be an implementation agreement. In that event, I would seek to differ with the noble and learned Lord about the interpretation of his amendment but that is a matter of little moment, I agree. However, in the event of there being an implementation agreement that follows the terms of the withdrawal agreement in outline, which noble Lords have seen, then during the transition period the Union law applicable pursuant to paragraph 1 will produce the same effect in the United Kingdom as in the remainder of the EU. That would extend to the jurisdiction of the CJEU in respect of the matter of the interpretation and effect of such law. The noble and learned Lord is quite right that it would be the intention of Her Majesty’s Government, in those circumstances, to ensure that such a provision was expressed in the withdrawal agreement Bill.

Lord Goldsmith Portrait Lord Goldsmith
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My Lords, in those circumstances I beg leave to withdraw the amendment.

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Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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My Lords, the House has heard the pleas of the heart if not of the head. I think I have said before that, although I was born in Germany, I sadly do not qualify for a German passport or else I would be doing the same as many others. So many people are doing it because they fear and regret losing their EU citizenship. As the noble Lord, Lord Kerr, quite rightly said, in the treaties EU citizenship is an add-on. Only people who are citizens of a member state have EU citizenship, with all the rights, protections and consular protections that brings. They have to be a citizen of a member state. Sadly, that change will come and we will not be EU citizens.

I would like to leave a thought with the Minister. We have not treated the whole of this aspect sufficiently seriously. We have not reached out to EU nationals living here and to people who are losing their rights as EU citizens. We have still not told EU citizens living here—unless I missed it—whether they will be able to continue to vote in our local government elections. We know they will not be allowed to vote in the European Parliament elections—that is fairly obvious—but there are other changes that the Government have been very lax and slow in spelling out.

The plea behind some of the feelings that we are having is to listen to the current EU citizens. If there is one plea that I would leave with our negotiators, it is that we need a withdrawal deal that puts citizens at its heart, not as an add-on, and that we should do everything that can be done to keep the links that we already have with agencies, education and so on. That would help to make a withdrawal deal that would enable British citizens, even if they will not have that lovely treasured purple passport, still feel as if they are continentals—full associates, if you like—with the rest of the EU.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, this is of course an important issue that has already been covered in depth, both in this Chamber and in the other place. I welcome the opportunity to discuss it further with the noble Lord, Lord Wigley, when we exchange views on the interpretation of the Vienna Convention on the Interpretation of Treaties, particularly Article 70 thereof. I acknowledge fully his interest in this area, the depth with which he has examined it and the importance that he underlines with regard to this matter.

Nevertheless the position remains, as summarised eloquently by the noble Lord, Lord Kerr of Kinlochard, that there is no provision in EU law for the concept of associate EU citizenship. It is clear that EU citizenship is tied to citizenship of a member state. The European Commission itself has referred to the additional rights and responsibilities attributed to the nationals of EU member states by virtue of EU citizenship, which they automatically attain under the provisions of the EU treaties. I emphasise the EU treaties because to take such a matter forward it would be necessary to contemplate the amendment of the EU treaties in a quite radical way, in order to attempt to confer on citizens of non-EU members the status of EU citizenship or something connected to it. However, we are willing to listen. Noble Lords may recollect that the European Parliament mentioned the idea of some associate citizenship; it has never elaborated upon that but if it wishes to, we are listening, and we would listen to that. I wish to make that clear.

The position of the Republic of Ireland emerges as the consequence of bilateral treaties that predate our entry into what was then the EEC and Ireland’s entry into the same, and that is not directly affected by our exit from what is now the EU. My understanding is that those arrangements continue in force.

With regard to the wider issue raised by the noble Baroness, Lady Hayter—the matter of voting rights, for example—during the course of the earlier negotiations we attempted to negotiate with regard to the exchange of voting rights, but at that stage the Commission declined to do so. That is something that we would wish to carry forward but the Commission was not prepared to engage in that discussion at that stage of the negotiation. Again, we remain open on these matters.

The citizens’ rights agreement reached in December, which is now set out in the draft withdrawal agreement, provides certainty for UK nationals in the EU regarding their rights following our exit. The agreement with the EU protects the rights of EU citizens and their family members living in the UK on exit day and indeed vice versa. To that extent, it will give citizens certainty about a wide range of rights including residence rights, healthcare rights and pension and other benefit rights. That will mean that UK nationals who are legally resident in the EU by the end of the implementation period will continue to benefit from most of the rights that stem from their EU citizenship today. As I say, associate EU citizenship does not make up part of the citizens’ rights agreement, and indeed by attempting to make it a negotiating objective we would be setting ourselves what is, frankly, an impossible target. The consequence would be that, should the amendment pass and the Government fail to adopt such an impossible negotiating position, our entire post-exit statute book would be put at severe risk. There would appear to be no sensible point in attempting to do that.

I stress that with regard to this matter we are in listening mode. Reference was made to the suggestion of further litigation in this area. A case is going on in Holland at present. It was referred by the Dutch Government to the Amsterdam Court of Appeal, which has heard the appeal and is due to deliver its judgment later in June. We do not believe that is going to affect the matter at all but we await the judgment of that court. At present, though, we must proceed with the ultimate goal: to deal with Brexit in the easiest manner possible so far as citizenship is concerned.

Lord Adonis Portrait Lord Adonis
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My Lords, could the Minister tell us what the case at the Amsterdam Court of Appeal is?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, it was an application about the rights of certain UK citizens resident in Holland having rights post Brexit in Holland. The objective of the case was clearly to secure a reference to the CJEU for the interpretation of certain treaty matters. When that proceeded, it is my understanding that the Dutch Government then intervened in the proceedings and they were the subject of a hearing before the Court of Appeal in Amsterdam. That matter is not yet advised, so that is where it stands. I am afraid I cannot give further details of the case but I understand that it was partly funded by lawyers in the UK. I hope that assists the noble Lord.

As I say, at present we, the EU and the Commission are quite clear on what the concept of EU citizenship means, that the source is the EU treaties, and that there is no provision at present for associate citizenship. If during the course of negotiation the Commission or other bodies in the EU come forward with such proposals, we will of course listen to them. At this stage, though, I invite the noble Lord to withdraw his amendment.

Lord Wigley Portrait Lord Wigley
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My Lords, I am grateful to everyone who has taken part in this debate: the noble Viscount, Lord Hailsham, the noble Lords, Lord Kerr of Kinlochard, Lord Dykes and Lord Green, the noble Baronesses, Lady Hayter and Lady Ludford, and the noble and learned Baroness, Lady Butler-Sloss. It has been a short but worthwhile debate. Some of those participating in it have seen weaknesses in the amendment, and I accept that there is room for criticism in that direction and that it is a challenge with regard to the status quo within which we are operating.

None the less, I feel that some benefit has come out of the debate, in that the Minister has indicated that the Government would be in listening mode, both in terms of the negotiations that are going on and in terms of what may or may not come forward from the European Parliament itself on this matter, bearing in mind that Mr Verhofstadt has indicated fairly strong feelings in that direction. If it were possible for some form of associate citizenship to develop out of this—if indeed we leave the EU, which I would regret but is likely to happen—that could retain our links for the period while we are outside the EU directly, I am sure that would be of interest to a large number of people, particularly to young people, as has been mentioned in this debate, because they identify with the European dream. The European dimension is part of their identity and they would like to have some access to it in a more formal way. On the basis of the comments made by the Minister, which I welcome as far as he was able to go, I beg leave to withdraw the amendment.

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Moved by
117: Schedule 8, page 64, line 29, at end insert—
“(7) Paragraph 4 of Schedule 1 does not apply in relation to any proceedings begun within the period of two years beginning with exit day so far as the proceedings relate to anything which occurred before exit day.”
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Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I rise to move the Government’s Amendment 117. The Bill’s approach to certain EU rights of challenge and associated remedies has already been scrutinised closely. We have debated at length the substantive provisions in the Bill covering this area and this House has made clear its views. I do not intend to go over old ground again in this speech. The amendment deals with the approach to transitional cases in one important area, where Francovich damages are being sought. I will say a little about the particular substantive provisions that this relates to.

Francovich damages are a specific form of remedy that exists in EU law. They are available in certain strictly limited circumstances where member states have breached EU law, for example where a member state has failed to properly transpose a directive. The Government remain firmly of the view that, after we leave the EU, Francovich damages will no longer be relevant when we cease to be bound to follow obligations that apply to member states. This is for the simple reason that the majority of Francovich cases in the UK have been brought on the grounds of non-implementation or insufficient implementation of a directive. The UK will no longer be under an obligation to implement directives after exit and the directives will not form part of our domestic law as retained EU law, so the ability to claim Francovich damages would not be possible for a post-exit cause of action. Paragraph 4 of Schedule 1 therefore removes the right to Francovich damages after exit day. The Government consider this outcome to be a natural consequence of the decision to leave the EU, while ensuring Parliament is sovereign.

The impact of these provisions on transitional cases is one area that the House urged us to think again on when we debated the matter in Committee. I concede that the noble Lords, Lord Davies of Stamford and Lord Carlile, made powerful arguments, in particular on the need to look again at cases where an individual’s course of action accrued before we left the EU. The amendment responds directly to that concern.

We remain of the view that it would not be reasonable for there to be a long tail of cases based on outdated elements of EU law continuing to process through our courts, potentially for many years after we leave the EU. That would not be conducive to the legal certainty this Bill aims for. The Bill will therefore set what the Government believe to be a clear and sensible cut-off point. The amendment we have brought forward will therefore delay the prohibition in the Bill on seeking Francovich damages in domestic law for two years after exit day. This will provide individuals with a fair and sensible opportunity to seek damages for pre-exit breaches of EU law. It also ensures that we continue to have a clear and certain cut-off point after which such challenges would end. I hope that the House supports the proposals that we have put forward, which I think provide important reassurance to individuals and businesses. I therefore beg to move.

Lord Beith Portrait Lord Beith
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My Lords, I wonder whether the noble and learned Lord could help the House, or those of us who were not following quickly enough, as to how Amendment 117 relates to Amendment 116, which, as I understand it, the Government did not move, and what the effect would be of having Amendment 117 without Amendment 116. Would that affect the Francovich damages time limitation?

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, the intention with respect to Amendment 117 is that there should be a two-year period after exit, during which it will be possible for a claim to be made in respect of a right of action that accrued up to the point of Brexit. I hope that that clarifies the point.

Lord Beith Portrait Lord Beith
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What was not clear to me was why the Government did not move the preceding amendment.

Lord Keen of Elie Portrait Lord Keen of Elie
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That is probably attributable to a note that I have here saying, “Don’t move Amendment 116”.

Lord Goldsmith Portrait Lord Goldsmith
- Hansard - - - Excerpts

I will try to help the noble and learned Lord. It might be because it is pre-empted by Amendment 19 on general principles of EU law, which the House passed at an earlier stage.

Lord Keen of Elie Portrait Lord Keen of Elie
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It was moved by the noble Lord, Lord Pannick. Because it was passed, Amendment 116 does not arise.

Amendment 117 agreed.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts
3rd reading (Hansard): House of Lords
Wednesday 16th May 2018

(5 years, 10 months ago)

Lords Chamber
Read Full debate European Union (Withdrawal) Act 2018 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 102-I Marshalled list for Third Reading (PDF, 72KB) - (15 May 2018)
Lord Mackay of Clashfern Portrait Lord Mackay of Clashfern
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My Lords, this is an important question. It is just possible that Clause 8 could be used by the courts in a situation arising under this particular amendment to extend the provisions of Clause 8 by analogy, where that seemed suitable. As the noble Lord, Lord Pannick, mentioned, fitting this to everything is quite difficult. On the other hand, for a court faced with a single problem, this way of solving it might be possible. Anyway, I am entirely in support of what the noble Lord, Lord Pannick, said about Ministers determining this sort of matter; I do not believe that that can be right. However, I do not think the court would fail, if faced with this problem, in deciding something about it.

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, the noble Lord’s amendment endeavours to provide a global answer to the question of whether retained direct EU legislation should have the status of primary or subordinate legislation—if and to the extent that is relevant. I am grateful to him for the engagement he has had with the Government throughout the passage of this Bill, especially in recent days. Let me say to the House that the Government understand that there is a desire that these new forms of law should be assigned a particular status. We are sympathetic to that view, which stems from a desire for clarity in the law. Of course, clarity is indeed highly desirable. The Government have gone to great lengths to try to make provision in the Bill for how retained direct EU law should be treated. The Bill addresses treatment of retained EU law by the Human Rights Act, the Interpretation Act and rules of evidence, among other things. That is an important part of this Bill. Our provisions on the principle of supremacy deal with the situation where pre-exit domestic law conflicts with retained direct EU law; our amendments on Report deal with amendability; and other provisions with validity challenges where the aim of the Bill is continuity.

On this specific issue of challenges to retained direct EU law, paragraph 1(1) of Schedule 1 states that:

“There is no right in domestic law on or after exit day to challenge … on the basis that, immediately before exit day, an EU instrument was invalid”.


As retained direct EU law under the Bill will owe its incorporation into domestic law to primary legislation, it will not be possible to challenge its validity using domestic public law principles. However, as is currently the case, any post-exit Act by a public authority under direct EU law will be susceptible to judicial review, and the Bill does not restrict the use of other routes of challenges, such as breach of statutory duty or challenges under the Human Rights Act. But the crux of our approach and our concerns with the noble Lord’s amendment is that there is no such thing in domestic law as the “status of primary legislation” or the “status of subordinate legislation”. There are many different types of both primary and subordinate legislation. For each of those types of law, there are many different rules about how they are to be treated for different purposes. Whatever we took as our model for how we wished to deal with retained EU law and how it should be treated, we would need to consider each of those different purposes and ask whether that model truly worked in each context.

My submission today is that while the pursuit of a simple rule is laudable, in practice the clarity it would purport to give would be illusory. It would raise more questions than it answered and, ultimately, it would be bad for legal certainty. I will, if I may, seek to illustrate what I mean—the noble Lord himself touched upon this. If we take the status of, for example, primary legislation, we are aware of at least five different types of primary legislation: Acts of this Parliament, Acts of the Scottish Parliament, Acts of the Welsh Assembly, Acts of the Northern Ireland Assembly and, indeed, Northern Ireland Orders in Council. Each is treated differently for different purposes; that is to say, it has a different “status”. Furthermore, to the extent that provision is made that provides that retained direct EU legislation is to be treated in the same way as an Act of, for example, the Scottish Parliament, as a matter of course the Government would want to engage with the devolved Administrations before making such a provision.

The so-called status of a particular type of legislation is not encapsulated in a single line or by reference to any simple rule. To take just one example, when this Parliament created the concept of an Act of the Scottish Parliament, it set out in the Scotland Act a number of rules, including how such Acts are made and in what circumstances and with what consequences they can be challenged. Nowhere did it try to define those rules by simply saying that Acts of the Scottish Parliament should have the status of any other existing form of legislation. What was right then is, I submit, right now. Once again, we are creating a new category of law. It needs its own rules, rather than being forced into an existing and ill-fitting set of rules made for another type of legislation.

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Baroness Hayter of Kentish Town Portrait Baroness Hayter of Kentish Town
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My Lords, the wonderful thing about devolution is that it happens within our political parties, just as it happens across the UK.

There is still time for some finessing. Perhaps we can, in the coming months, find an alternative way forward to the approach now proposed, particularly before any draft regulations are laid before this House— maybe from some of the ideas going around today. If we can find a way forward that commands the support of all the devolved Administrations and thus preserve the spirit of the Sewel convention—which those of us who care about devolution rightly believe is of huge importance—we on these Benches would welcome it. For now, we judge that the package in front of us is a positive way forward, and is thus no barrier to our agreement to a Third Reading.

I should add a word about the clauses on devolution and Northern Ireland, given that, very regrettably, it was not possible to have the same level of political engagement from there as was available to the Scottish and Welsh Governments and their legislatures. Cross-UK frameworks have particular relevance to Northern Ireland, given the Government’s welcome commitment,

“to uphold the Belfast Agreement in its entirety, to maintain a frictionless border between Northern Ireland and Ireland, with no physical infrastructure”,


while ensuring that any regulatory continuity in Northern Ireland to maintain a frictionless border would not threaten Northern Ireland’s place in the internal market of the UK. The future developments of the frameworks envisaged in this package have to respect the wider demands of upholding the Good Friday agreement. We trust that will remain uppermost in the Government’s mind.

Lord Keen of Elie Portrait Lord Keen of Elie
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My Lords, I thank noble Lords for their contributions in this debate. We may be repeating some of the ground that we covered at Report, but these are important matters and they deserve full attention. I appreciate that noble Lords want to consider the points made during the debates on the Motions in the Scottish Parliament and the National Assembly for Wales yesterday.

I understand the intention behind the amendment of the noble Lord, Lord Thomas, but I do not accept that the amendment adds anything that is not already achieved by the Bill and by the intergovernmental agreement. This amendment pertains only to Wales, although I appreciate the point made by the noble and learned Lord, Lord Wallace, as to the position in Scotland. It seeks to remedy what is essentially already a firm political commitment that we have made, in line with the intergovernmental agreement, that we will not normally put Clause 15 regulations before this Parliament without the consent of the National Assembly for Wales.

I would put it to the noble and learned Lord that the sincerity of this commitment—and the process and agreement that underpin it—is, it would appear, sufficient for the Welsh Government to agree to these provisions, and it is sufficient for the National Assembly for Wales to agree to these provisions, as it did yesterday. There must be a genuine cause for action in the interests of the whole of the United Kingdom if the UK Government ask the UK Parliament to approve regulations without consent from the devolved legislatures. I note what my noble and learned friend Lord Mackay of Clashfern said as to the legal position, but of course it goes beyond that. We are concerned to ensure that moves that have a UK-wide impact have the consent of the devolved Administrations.

The intergovernmental agreement that we have made with the Welsh Government makes this clear. The noble Lord, Lord Thomas, referred to paragraph 6 of that agreement which states that we, the UK Government, will not normally ask Parliament to approve draft regulations in the absence of a devolved legislature’s consent. It is also why we will be under a duty to fully explain any such decision to Parliament and to provide the reasons given by the devolved Administrations for why consent has not been given, so that in considering this matter Parliament will be able to take an informed decision on what is right for the United Kingdom as a whole, based on full information. Ultimately, as we have debated fully in this House, it is for the UK Parliament to decide whether to proceed in putting a temporary freeze on the common approaches we have now under EU law. This amendment, while well intentioned, would undermine that. It risks making it a decision for the courts as to whether that question can be put to Parliament. Moreover, the noble Lord himself observed that where you have the issue of what is normal or not normal in the actions of a Minister, it may be amenable to judicial review if he proceeds without the appropriate consent. It would introduce uncertainty because in that context there are no clear grounds on which the courts can consider whether the requirement set out in the intergovernmental agreement has been met.

I am happy to repeat the commitment set out in the noble Lord’s amendment and in paragraph 6 of the intergovernmental agreement. The implementation of that agreement will result in the UK Parliament not normally being asked to approve Clause 15 regulations without the consent of the devolved legislatures. The UK Government have committed to making regulations through a collaborative process. That puts a similar commitment on the Welsh Government that they will not unreasonably withhold recommendations of consent. These are political commitments which apply to both of our Governments so that the intergovernmental agreement carries greater weight. For the reasons that I have given, I would suggest that there is nothing to be gained, and indeed something to be lost, by putting those words on the face of the Bill. In these circumstances, I invite the noble Lord to withdraw his amendment. Perhaps I may come on to the legislative consent Motion process of yesterday in a moment because he raised questions directly pertinent to that point.

In relation to the amendment spoken to by the noble and learned Lord, Lord Wallace, I recognise that he raised this point during Report and that he is doing so again through his amendment today. I am grateful for this opportunity to clarify these provisions on the record. The noble and learned Lord has made an important case for why we should seek to provide the utmost legal clarity. Given the extent of the Clause 15 changes, this sort of fine detail can easily be lost, but it is no less important that these provisions should deliver the right outcomes. As I confirmed in response to the noble Lord at Report, the reference to principles in sub-paragraph (b) of the reporting requirement is indeed intended to cover those principles that are the subject of his amendment; that is, those principles which were agreed between the UK Government and the devolved Administrations at the Joint Ministerial Committee on EU Negotiations meeting on 16 October 2017 and published in the communiqué of that committee, to which the noble Lord referred. But I ought to be clear that while this reference covers the same ground as the amendment, the current wording also includes any revisions agreed to those principles and to new principles on the same subject that are put in place to supplement them over time.

I am sure that noble Lords will agree that it is right that as the work on the frameworks progresses—and it continues to progress—and as circumstances may change, we, the UK Government, and the devolved Administrations should continue to review the principles to ensure that they remain fit for purpose. I do not believe that it is the noble and learned Lord’s intention that the duty to report on any agreed revisions to the principles should be lifted from the Government or that we should be under a duty to report on the principles as drafted only in October 2017, even where these may have subsequently been revised or updated; but that, on one view, would be the effect of his amendment. In these circumstances, I am grateful for the opportunity to clarify what is covered by the reference to the principles, but again for the reasons given, I invite the noble and learned Lord not to press his amendment.