European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, as we have been told, Clause 38 is essentially meaningless. It is declaratory, I think it was said; a sop to the ERG. Indeed, the Explanatory Memorandum makes clear that the clause makes no material difference to the scope of Parliament’s powers.

However, it is not just neutral. The problem, as we discussed on Tuesday, is that, by having this clause but failing to refer alongside it to the Sewel convention that the UK Parliament will not normally use its powers to legislate in devolved matters without the agreement of the National Assembly—or indeed the Scottish Parliament—it appears to our colleagues there to undermine the devolution settlements.

It is for that reason, as we discussed in relation to Amendment 45 on Tuesday that the Welsh Government wish the Sewel convention to be restated alongside what is in this clause, if it really must remain in the Bill, although it is in fact otiose and it would probably be best for it to go altogether. I see the Chief Whip in his place; he always likes to know what we will return to. That is one point to which we shall return next week.

For the Opposition, however, there is a different problem with the clause, which is that the rest of the Bill does the exact opposite to what it says in it. Virtually all the rest of the Bill dilutes parliamentary sovereignty vis-à-vis the Executive: it takes powers from us, not to give them to Wales or Scotland but to give them to the Government.

Future historians will puzzle over why this clause is here. We are particularly grateful to the noble Lords for giving notice of their intention to oppose that Clause 38 stand part, because it gives us the opportunity to write that into Hansard, so that when future historians—I am a historian—look at why on earth this clause was there, they can say it was there to keep the ERG of the Tory party happy. That does not seem to us to be a very good reason to have it, but if it really must remain, without the reference to the devolution settlements it is in fact unhelpful, rather than neutral.

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

My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

[Lord Wallace of Saltaire]

My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.

[Lord Keen of Elie]

My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.

On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.

[Lord Wallace of Saltaire]

I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.

[Lord Keen of Elie]

It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

[Baroness Hayter of Kentish Town]

Does the noble and learned Lord therefore accept that if there was an addition to restate the convention, that would not detract in any way from what is in the clauses at the moment?

[Lord Keen of Elie]

It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

[Lord Wallace of Saltaire]

My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.

[Lord Keen of Elie]

I think we are aware that it did not join the League of Nations.

[Lord Wallace of Saltaire]

Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.

I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.

--- Later in debate ---

[Lord McNicol of West Kilbride]

My Lords, I responded to an amendment in the name of the noble Lord, Lord Greaves, on day 1 of Committee, so it seems we have come full circle. I offer a brief response to these further amendments regarding the independent monitoring authority. I understand that these are probing amendments, and I am keen to hear the Minister’s response, so I will not detain the Committee after three consecutive days of debate on this Bill, which I hope will not be a trend in future when debating Bills off the back of Brexit.

I am particularly interested in Amendments 49 and 50, which would prevent the Secretary of State from appointing a person to the IMA against the wishes of the relevant body. This suggestion strikes me as entirely sensible. Given previous ministerial assurances on the issues of devolution, I would be very interested to hear from the Minister in what circumstances the Government would seek to force through an appointment that had been opposed by a devolved Minister. If that were to happen, the current sub-paragraph (7) requires the Secretary of State to make a statement outlining the reasons for proceeding with that appointment. Can the Minister confirm what form this statement would take, and what opportunities, if any, the relevant devolved legislatures would have to hold the Secretary of State to account?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Greaves and Lord McNicol of West Kilbride, for their contributions.

As was the case during Tuesday’s debate on Clause 15, we have noticed the importance of the IMA’s role and functions interacting properly with the devolved settlements. I seek to reassure the noble Lord, Lord Greaves, and the House, that the IMA has been designed in a way that takes into account the individual interests and circumstances of Scotland, Wales, Northern Ireland, England and indeed Gibraltar.

In addressing the amendments, I begin by showing the Committee that the Government’s approach to establishing the IMA, as set out in Clause 15 and Schedule 2, was reached following detailed and extensive engagement with the devolved Administrations. As a result of this consultation, we have ensured on the face of the Bill that the IMA’s board will contain members with knowledge of relevant matters in relation to citizens right across the United Kingdom. Those relevant matters include not only matters reserved for the United Kingdom Government, but also matters that are devolved to the Scottish, Welsh and Northern Irish Administrations. Therefore, we have provided a full and robust role for Ministers of the devolved Administrations in the appointment of candidates to board positions. Of course, parts of the citizens’ rights agreements that the IMA will monitor, such as provisions covering healthcare, welfare and education, are already devolved to Scotland, Wales and Northern Ireland, which has been taken into account. That is why there is a requirement for expertise in these areas.

However, I reassure the noble Lord, Lord Greaves, that the IMA will also possess the same expertise specifically in relation to England. He refers to Amendment 48 as seeking to achieve expertise in that area, but I draw his attention to paragraph 4(1) of Schedule 2, which states that

“the Secretary of State and the non-executive members must have regard to the desirability of the IMA’s”

board possessing relevant expertise in relation to citizens’ rights across the United Kingdom. It should embrace both reserved areas which are pan-UK and those devolved areas specific to the particular devolved Administrations. We can ensure by default that regard is had to the desirability of the IMA possessing expertise in relation to England. It is for that reason that Amendments 48 and 51 are unnecessary and I shall in due course invite the noble Lord not to press them.

European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

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

My Lords, I begin by acknowledging the powerful maiden speeches delivered by my noble friend Lord Barwell and the noble Lord, Lord Mann, in whose speech there was nothing with which I could have possibly disagreed. I believe that every Member of this House would embrace both the content and sentiment that he expressed.

This Bill is of the highest importance and consequence for the country and is vital in delivering our withdrawal from the European Union at the end of this month. In opening, the noble Lord, Lord Newby, was candid and—I would venture—generous in acknowledging the position in which we stand since the general election. This Bill is not about whether or not we will leave the European Union; it is not about determining the terms of our departure from the European Union; it is not about the future relationship. The Bill ensures that the withdrawal agreement and the associated agreements under the EEA, EFTA and Swiss separation agreements are implemented in domestic law in order that they can be given full effect and thereby allow the Government to fulfil their obligations under international law.

I echo the sentiment of my noble friend Lord Callanan in acknowledging the work of all our Select Committees, including that of the Constitution Committee; the noble Baroness, Lady Taylor, indicated that it would deliver its report tomorrow, and we appreciate the speed with which it has addressed these matters. I also thank all noble Lords who contributed to today’s debate and discussion, although it will clearly not be possible for me in the time available between now and midnight to respond to each and every point that has been made.

The noble Earl, Lord Kinnoull, the noble Baroness, Lady Hamwee, my noble friend Lord Cope and other noble Lords raised the question of the prohibition the Bill places on the extension of the implementation period. The general election has clearly shown that the public want no further delay in our exit from the European Union, let alone potentially the 40 years’ delay of Exodus, as cited by the noble Lord, Lord Beith. The prohibition in this statute binds the Government to their manifesto commitment not to extend the implementation period beyond December 2020.

However, I reassure noble Lords that all parties have committed to using good faith to secure agreement on our future relationship by the end of 2020, and we will work with great energy to achieve this. Indeed, article 184 of the withdrawal agreement refers in particular to the obligations on all parties and, in turn, refers to point 135 in part five of the political declaration, where the parties themselves express the intention to have the agreement in force by the end of 2020.

The matter of citizens’ rights has been raised by a number of noble Lords, in particular by the noble Lords, Lord Newby and Lord Oates, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Teverson—I will come on to the particular point he raised in a moment. EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here. We have already provided certainty to over 2.5 million people who have been granted status through the EU settlement scheme. The scheme is free, there is plenty of support for applicants, and they have until at least 30 June 2021 to apply to it.

I understand that the issue of presettled versus settled status has generated concern in some quarters. I make it clear that presettled status is a pathway to settled status, because those with presettled status can move straight to settled status by making an application once they reach five years’ continuous residence in the United Kingdom. I hope that puts some minds at rest. Indeed, we are taking a very pragmatic approach in trying to deal with applications, both of presettled and settled status. If an applicant needs to use the full five years of their presettled status, they will also receive an automatic reminder to apply for settled status before their leave expires. There is therefore no question of people being overlooked in this context. To that end, I understand that the Home Office’s automatic status checker uses the government database to help applicants secure the right form of status in a smooth and effective manner.

Reference was made by the noble Lord, Lord Teverson, and the noble Baroness, Lady Miller, to the status of UK citizens in the EU. However, that is of course not a matter of domestic law and is therefore not a matter for the Bill, which is intended to implement the international legal obligations which we have undertaken pursuant to the withdrawal agreement. Therefore, the status of UK citizens in the EU will be the subject of the future relationship negotiations.

Questions were asked, particularly by my noble friend Lord Leigh of Hurley and the noble Baroness, Lady Ludford, about the status of the IMA. I assure noble Lords that the Bill guarantees that the IMA will be fully independent of government. As the Bill sets out, the IMA will be run by an independent board and contain the appropriate expertise on citizens’ rights, and the Government will have no role in its day-to-day running or in its decisions. The noble Baroness, Lady Ludford, suggested that, pursuant to the provisions in Schedule 2 to the Bill, the IMA could be abolished. That is simply not the case. There can be a transfer of the IMA’s functions at some point, but those functions must be continued and carried on. After a period of eight years, it will be possible for the UK to negotiate with the EU on the matter of whether the IMA is still required, but the obligation to maintain it is one that we have undertaken in international law, pursuant to the withdrawal agreement, and one to which we as a Government will adhere. So, there is no question of the unilateral abolition of the IMA.

I listened to the concerns expressed across the House, particularly by the noble Lord, Lord Newby, in relation to the delegated powers in the Bill. The original sifting mechanism introduced in the EU withdrawal Act was a response to the exceptional circumstances we then found ourselves in. The situation now is quite different and it would not be appropriate to include a sifting mechanism in the Bill in this instance.

I listened also to the concerns expressed in relation to the power contained in Clause 21 to implement the protocol on Ireland and Northern Ireland. I also took note of the comments of noble and learned Lords on the DPRRC in this regard. But we in this space must be aware of what occurred in the other place and have regard to the response from the Government Benches to the concerns raised there. The Government have stated that providing certainty and reassurance to people and businesses in Northern Ireland is of paramount importance to them. The power contained in the Bill to implement the protocol provides that reassurance.

Furthermore, as my noble friend Lord Callanan pointed out at the beginning of the debate, the Bill’s approach to implementing the protocol is the best way to ensure that the United Kingdom can fulfil its international obligations and make the necessary arrangements to implement the protocol in the time available. Any other approach would risk jeopardising the Government’s ability to fully implement the protocol and would inevitably send a negative signal to both businesses and individuals in Northern Ireland. I hope that the House will agree that the fulfilment of these two aims—namely, ensuring that the Government can fully implement the protocol and reassuring businesses and individuals in Northern Ireland—should not be undermined.

Noble Lords asked about Parliament’s oversight of the future relationship negotiations. It was interesting to observe the different views that came from different sides of the House. For a while, many noble Lords expressed concern about the removal of parliamentary oversight. I believe that I noted both my noble friend Lord Bridges of Headley and the noble Lord, Lord Darling, expressing the view that, at the end of the day, negotiation of such matters as international relations had to be a matter for the Executive, essentially, and not one for Parliament to be directly involved in—albeit that, at the end of the day, myriad pieces of legislation will require to be approved by Parliament and put in place in order that the future relationship can be established and maintained.

The political declaration agreed by the Prime Minister as part of our exit negotiation sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis. As the Prime Minister said in the debate on Second Reading in the other place, Parliament will be kept fully informed on the progress of these negotiations. Both Houses will have access to all their usual scrutiny tools, including Select Committees and the questioning of Ministers, and I have no doubt that the House will take full advantage of them. So, in these circumstances, we do not consider that there is a requirement for any additional statutory role. Furthermore, we are giving the EU Committee the ability to trigger debates on new pieces of law proposed by the EU that raise matters of national interest during the implementation period.

I turn now to the matter of unaccompanied asylum-seeking children, which was touched on by the noble Lord, Lord Dubs, and mentioned by a number of other noble Lords. Of course, concerns have been raised over family reunion for unaccompanied asylum-seeking children. I wish to make clear that the Government are fully committed both to the principle of family reunion and to helping and supporting the most vulnerable children. The Government, as my noble friend Lord Callanan observed, have a record of providing protection for vulnerable children, receiving 15% of all asylum claims from unaccompanied children in the EU.

Clause 37 does not represent a change to that existing government policy. It removes the statutory requirement to negotiate. This is appropriate as the Government have demonstrated their intentions by already writing to the European Commission to commence negotiations on this issue. It is vital that the Government are not legally constrained in those discussions. We are restoring the traditional division of competence between Parliament and the Executive when it comes to international negotiations. This clause fulfils the essential function of allowing us to continue negotiating a comprehensive agreement and rightly ensuring that Parliament is informed of the Government’s policy intentions in respect of our future arrangements.

I shall move on to deal with the question of the case law of the CJEU. I have noted the concerns that have been expressed here. While clearly EU case law is a defined body of law, it is important that our courts are not eternally bound by historic decisions of the EU Court of Justice after the implementation period has expired. Let me provide some important points of reassurance. First, the approach that we have taken is consistent with our international obligations. Clause 26 already provides for how the separation agreements must be interpreted and nothing that we do here will cut across that. Secondly, we want to approach this matter in a sensible way.

Let me be clear that there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom. We must consult with the senior judiciary before making any regulations, and the clause provides for the Minister to consult with others as is appropriate. What we intend is that the power will be used to ensure that retained EU case law is a living law rather than one preserved in aspic. There will be legal clarity at the point when any case concerning this body of law is heard. The power can be used only until the end of the implementation period, and the courts will be interpreting retained EU law only after that period. So we have the period of the implementation time in which to address this issue and it will then apply from the expiry of the implementation period. But I repeat that there is no intention on the part of the Government to extend the power to every court and tribunal in the land. We recognise the uncertainty that would be a consequence of such a move.

I turn to matters pertaining to devolution, which arose in a number of different contexts. First of all, the noble Duke, the Duke of Montrose, raised questions about the CAP and an agriculture Bill. I assure noble Lords that the CAP will continue to the end of the implementation period, by which time we will have taken forward the agriculture Bill. The noble Duke also referred to the frameworks, and perhaps I may remind noble Lords of the importance of these frameworks in the context of our relations with the devolved Administrations. Between October 2017 and March 2018, we published what was termed a common frameworks analysis, which set out about 153 areas in which EU law intersected with devolved competence. After discussion we have reduced that number, but have carried on an analysis of these areas with the devolved Administrations and continue to work closely with them on these issues.

One example of that is fisheries, which have already been mentioned in this debate, where we proposed a new UK framework to ensure access for UK fishing fleets throughout UK waters. That has been taken forward through discussion with the devolved Administrations and has been governed by principles agreed at the joint ministerial conferences. I give the detail of that just to underline the extent to which we are engaged with the devolved Administrations in this context.

As was suggested early on, the engagement between the UK Government and the devolved Administrations over the Bill has been rather unusual, because the recommendations coming back from the devolved Administrations have been principally concerned with reserved matters. The devolution settlement involved the reservation of specific matters to the United Kingdom Parliament. It was never intended that in the conduct of such reserved matters—for example, international affairs—the United Kingdom Parliament could be inhibited or frustrated by the devolved Administrations. That would not be normal under our devolution settlement, and that is reflected in the terms of the Sewel convention. For our part, the Government have followed the spirit and letter of the devolution settlement throughout the process pertaining to this Bill. The engagement of the devolved Administrations—

[Baroness Hayter of Kentish Town]

Does the Minister accept that while the negotiations may indeed be for reserved matters, in many cases the implementation is not reserved? That is why they are particularly worried about the lack of consultation.

[Lord Keen of Elie]

There are clearly circumstances in which the implementation of the withdrawal agreement will impact on the scope of executive competence of the devolved Administrations, and they are well aware of that, but those are not the issues they have sought to address with the UK Government in this context. They have sought to address matters that are reserved. As I say, the fundamentals of the devolved settlement, going back to 1998, never intended that where the UK Government were exercising a reserved function they should be inhibited or prevented from doing so by the devolved Administrations. It is important to bear that in mind.

As I say, we consider that we are taking appropriate steps to engage with the devolved Administrations, and we will continue to do so. Indeed, we continue to hope that the Welsh Government in particular will reflect on this and revise their recommendations to the National Assembly on legislative consent. At the end of the day, what we are doing here is implementing an international treaty obligation; that is the role of the United Kingdom Parliament.

I will now touch on one or two additional points in the limited time remaining. The noble Baroness, Lady Thornton, raised a number of issues with regard to health. Clearly, nothing is going to change before the end of the implementation period, and thereafter it will be a matter for the negotiation on the future relationship. It is not a matter for this Bill, which is intended to implement the present withdrawal agreement. She also made reference to the clinical trials directive. I should observe that the new EU clinical trials directive has not yet been adopted, so we do not even know where the EU will be with regard to that. Of course, once we do know, it may form the subject of negotiations on the future relationship.

The noble Baroness, Lady Crawley, made a powerful point that, after 46 years of being subject to EU law, women have still not secured equal pay. I certainly hope that we will do better after we leave the EU.

The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.

The noble Baroness, Lady Donaghy, referred to UK worker rights. I notice that, in many respects, UK worker rights are much higher than the norm within the other EU 27 states. One has only got to consider such issues as paternity and maternity leave, and other related issues, to appreciate that what we may hope for after exit is that the EU is able to catch up with us.

I look forward to tomorrow’s Committee stage, where we can enter into more detailed scrutiny and debate on the issues that have been raised today. This Bill ensures that we honour the result of the 2016 referendum and leave the EU on 31 January, on the terms of the withdrawal agreement. It ensures that the agreements have full effect in domestic law and that, accordingly, the Government can discharge their obligations in international law.

Once the Bill is passed and the withdrawal agreement ratified, we will proceed to the completion of a free trade agreement with the EU by the end of December 2020. We can then go on to focus on other national priorities, such as the National Health Service, education and skills, and ensuring that we make our country safe. I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019

Lord Keen of Elie Excerpts

Wednesday 27th March 2019 Lords Chamber

[Lord Warner]

I thought that we were discussing the statutory instrument, but this is rapidly turning into an angst and confessional session for the Conservative Party. I wonder whether we might move rather more promptly to the Front Bench to reply on behalf of the Government.

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

My Lords, I am greatly impressed and relieved that so many Members of this House have expressed an interest in the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) Regulations 2019. It appears to have taken us rather more than an hour to arrive at the conclusion that we are all in favour of the instrument and that we understand its purpose and the requirement to ensure that the domestic statute book is not left in disarray—because we are not anarchists and we do not wish to invite anarchy upon our heads.

I will say little about the instrument itself, but I will address some of the points that have been raised by noble Lords—albeit that I do not intend to be drawn into issues about conspiracy theories or about the shape of any party, because it is a case of country, then party, rather than party, then country. Furthermore, I simply wish to draw together the contributions that have been made.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

I just wondered whether the noble and learned Lord was speaking on behalf of the Government, who were threatening that we should be leaving the day after tomorrow with no deal.

[Lord Keen of Elie]

When I am at the Dispatch Box, I always speak on behalf of the Government; that at least is my understanding. I am addressing not the matter of the policy of the Government, but the matter of the amendment and where it would lead us. On that, my respectful view is that it would be a wholly reckless course of action for this House to adopt. I invite noble Lords to consider very carefully the precise terms in which it has been expressed.

The noble Baroness, Lady Ludford, raised a number of issues about the position of the ECA and the matter of its repeal, in the context of the statutory instrument. Indeed, this touched upon points then made by the noble Lord, Lord Pannick: that the 2018 Act had been enacted but a number of provisions had not yet been commenced, having been deferred from Royal Assent. I accept that his analysis of the commencement provisions is, as I understand it, entirely accurate. In particular, there has been no commencement provision in respect of Sections 1 to 7, albeit that there has been commencement provision in respect of a number of other parts of the Act.

I confess that this can lead one into difficulty; certainly, it led me into difficulty on an earlier occasion in this House when I observed, in response to a question from the noble Lord, Lord Anderson of Ipswich, that the provisions with regard to European elections were repealed because that is expressly provided for in the 2018 Act—without appreciating that those provisions had not been commenced. I have some sympathy for the need for a detailed analysis of what has been commenced and what has not. That said, I want to be clear that the reason for not commencing Sections 1 to 7 is that as a general rule such commencement provisions are brought in only as and when the relevant statutory provisions are going to be required, and it is not for the reason suggested by the noble Lord. Nevertheless, I acknowledge that any withdrawal agreement Bill may amend the withdrawal Act provisions with regard to retained EU law to reflect what is or may be agreed in a withdrawal agreement. Therefore the withdrawal agreement Bill may well address a number of features of the existing 2018 Act.

A number of noble Lords, including my noble friend Lord Robathan, alluded to the Prime Minister having expressed the opinion on a number of occasions that we would leave the EU on 29 March 2019. However, as I believe Keynes once observed, “When the facts change, I review my opinion. What do you do?” In light of the facts having changed, it is hardly surprising that that opinion has changed.

A number of noble Lords, including the noble Baroness, Lady Ludford, asked whether the European Council determination was a matter of EU law. It is a decision under EU law but, obviously, one that is recognised at the level of international law. It is therefore a matter of EU law, as an expression of determination that is recognised by Article 188 of the Treaty on the Functioning of the European Union as binding upon any member to which it is directed, but is also a decision of determination that would be recognised at the level of international law. That is why, although we have agreed these dates at the level of international law, having regard to the duality principle we have to ensure that they are also recognised and implemented at the level of domestic law.

There were a great number of other observations but perhaps I can touch upon just two. First, my noble friend Lord Forsyth suggested that this Government had achieved the impossible, and I am obliged to him for his suggestion that we are capable in that regard. Nevertheless I would have to draw back a little from that proposition, which he mentioned in the context of the functioning of the Joint Committee. The point that I simply make is that it is not for the Executive to direct these committees on how they function and discharge their functions. As it transpired, that committee very helpfully, readily and appropriately brought its proceedings forward, but it was not for the Executive to try to bind it to do so.

[Lord Forsyth of Drumlean]

If my noble and learned friend checks Hansard, he will find that I said the Government had achieved the impossible by finding a printer who was able to print the result. His boss, the Leader of the House, told us that that was one of the things that it would not be possible for this Government to achieve.

[Lord Keen of Elie]

Again, I am very pleased at my noble friend’s acknowledgement that we have achieved something that was otherwise regarded as impossible. It is encouraging that we have such support, at least from our own Benches. [Laughter.] Those opposite are the Opposition, not the enemy. We must do something about knife crime.

Secondly, the noble Lord, Lord Adonis, repeated, as he has done often before, his uncompromising advice on what we got wrong and how to put it right—but on this occasion he did it, as he said, with humility, so some things are beginning to change. The other observations that were made in this invigorating debate really had nothing to do with the instrument or with the Motion that has been tabled. I therefore shall not pursue them at this time of the evening.

I finish by begging to move that the instrument should be approved and again encouraging noble Lords to look carefully at the precise terms of the Motion that is to be moved by the noble Baroness, Lady Hayter of Kentish Town. We cannot have a situation in which the Executive are purportedly bound to any Motion that has not yet passed in the Commons. That way lies chaos, which is the one thing we do not need at this point in time. I am obliged to noble Lords.

[Baroness Hayter of Kentish Town]

That is not fair. How can I follow that? I will say two things to the noble and learned Lord, Lord Keen. He mentioned Robert Peston; of course, when I first came here, his father Lord Peston was sitting behind me. I think he would have enjoyed today’s proceedings, maybe for all the wrong reasons.

I should also say to the noble and learned Lord that using the example of the Baron amendment, which called for a no-deal exit, does not come across well from a Government who have been threatening that we would leave with no deal the day after tomorrow. New paragraph (b) in Regulation 2(2) of the statutory instrument still says that we could leave without a deal at 11 pm on 12 April. That was probably the wrong example to use.

We had some interesting interventions on my amendment from the noble Duke, the Duke of Wellington, and the noble Baroness, Lady Ludford, who reminded us that this was an ideological choice at the beginning. The noble Lord, Lord Hannay, reminded us about the cost of all this, as did the noble Lords, Lord Hamilton and Lord Robathan. From the feed coming through, I understand that the Prime Minister’s resignation will be dependent on getting the deal through, in which case the Conservative Party leadership contest will start on 22 May. I am already hearing about all sorts of cabals going on, but that is not for us.

There were interventions on the SI itself, rather than my amendment, from the noble Lords, Lord Forsyth, Lord Pannick, Lord Warner and Lord Cormack, the noble Viscounts, Lord Ridley and Lord Waverley, and my noble friend Lord Adonis. The noble Lord, Lord Framlingham, also spoke. He told us that he is normally an optimist, but is now nearing despair. In an earlier debate—I think it was when we were doing the Bill—we had Hope, Pannick and Judge. As the hope is rather fading, we are closer to the panic than we were at that stage.

I think my amendment has provided an opportunity for the House to express its concern about the chaotic way we got here and where the blame lies. Even if there was not complete agreement on the last bit of the amendment, I think it served its purpose in allowing the House to express its views, without having to divide. I beg leave to withdraw the amendment.

Further Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Keen of Elie Excerpts

Wednesday 27th February 2019 Lords Chamber

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

My Lords, I am grateful to all noble Lords for their contributions. I am particularly grateful to noble Lords who have said something new.

The noble Baroness, Lady Hayter of Kentish Town, began by referring to the Prime Minister leaving no-deal threats on the table or not taking such a deal off the table. Similar observations were made by the noble Lord, Lord Campbell of Pittenweem, and the noble Baroness, Lady Altmann. The noble Lord, Lord Liddle, contented himself with alluding to a fantasy. Let us be clear. This may help some people’s conscience, but the Prime Minister did not put no deal on the table; nor did she threaten with regard to no deal. This Parliament put no deal front and centre of the issue. This Parliament passed the referendum Bill. I wonder how many people here voted against it. They passed the referendum Bill. Then this Parliament passed the Bill to allow the Article 50 notification to be served. I wonder how many people here voted against that. I see one or two.

[Lord Liddle]

I did.

[Lord Keen of Elie]

Well done, you are entitled to refer to a fantasy; others are not. The consequence of that was that we were leaving consequent on the application of Article 50, which required at the level of international law that a certain notice period should be given.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord for giving way. He said that the Prime Minister was not responsible for putting no deal on the table. Did he read the Lancaster House speech, in which she said that no deal was better than a bad deal, and then repeated it several hundred times?

[Lord Keen of Elie]

The noble Lord’s observation is utterly irrelevant in this context. Let us be clear as to what the legislation provided. Ultimately, it provided that we would leave the EU on 29 March 2019. This Parliament determined that date—not the Prime Minister, not the Executive. Let us bear that in mind, shall we? It is in that context that you have to look at where we are going.

I come on to some of the observations of the noble Lord, Lord Newby. I am a little concerned for him, because he appeared to proceed on the basis that purgatory has its limits. I am terribly sorry to inform him that, as and when he arrives in purgatory, he may find that it is actually indefinite. He had better proceed with a degree of care in that context. He made an allusion to Mr Corbyn as a “schoolboy”. I do not want to take the allusion too far, but I will refer to one well-known fictional schoolboy called William, who said you cannot have a referendum if you do not know the question. We all know that. The point is that Mr Corbyn may be in favour of a referendum, but we have no idea what question he might or might not have in mind. Other members of his party have advanced questions, of course, but Mr Corbyn himself has not told us what his question is or is going to be. It appears that it is hidden in his allotment at present.

[Baroness Hayter of Kentish Town]

I know Cabinet responsibility has gone a little awry on that side, but we actually still have it. We have made it clear—Keir Starmer, Emily Thornberry and I have made it clear—

--- Later in debate ---

[Lord Keen of Elie]

It is comforting to know that Mr Corbyn has friends. It is also comforting that they can speak for him when he does not speak for himself. It remains interesting that he has yet to express his view as to what the question would be. As I say, at the end of the day you cannot have a referendum without a question.

The noble Lord, Lord Newby, also raised a question about the time for further legislation. Our position remains that, as with the secondary legislation programme, the Government are confident that primary legislation required for exit will be delivered. Business in both Houses is being scheduled accordingly to allow for that. I acknowledge that there will be a need to balance the requirement to pass vital legislation sent to us by the Commons with the need to ensure that this House has adequate time to scrutinise such legislation.

[Lord Newby]

I am very grateful to the Minister for clarifying that. Could he go further and answer my question about whether the Government intend to get through by 29 March the Agriculture Bill, the Fisheries Bill, the immigration Bill and the Trade Bill?

[Lord Keen of Elie]

As I indicated, all necessary legislation will be taken through in time for exit day, and that is our intention.

[Noble Lords]

Oh!

[Lord Keen of Elie]

Barking from a sedentary position does not advance matters. I wonder if it might just be noted that it is our intention to take through all necessary legislation required for exit day, and we will deliver the business as required in both Houses. That is what is planned.

[Lord Stoneham of Droxford (LD)]

Will the Minister define what “necessary legislation” will be?

[Lord Keen of Elie]

Yes, of course. Necessary legislation is the legislation necessary to have in place for exit day. I hope that clarifies that point for the noble Lord.

I turn to some of the observations of the noble Lord, Lord Kerr of Kinlochard, who among other things asked us to contemplate the Swiss approach to free movement. It was a very interesting observation. I ask him to contemplate the Swiss referendum to end free movement and the threats then faced by Switzerland from the EU as a consequence of having had that referendum. It was not the Swiss approach to free movement that succeeded.

[Lord Hannay of Chiswick]

I am most grateful to the noble and learned Lord, because he is telling us a little Swiss story. Perhaps he would end by explaining how they had a second referendum.

[Lord Keen of Elie]

I see no need to do that in the circumstances, but many would regard that as an outrage in the context of the democratic traditions of the cantons of Switzerland.

I appreciate that the noble Lord, Lord Kerr of Kinlochard, is deeply attached to the idea of the EU and would not easily give it up. I think he may be an alumnus of the Glasgow Academy—its motto is “serva fidem”, or “keep the faith”. Certainly, he intends to do so, even in the face of the result of the referendum itself.

Turning to the observations of my noble friend Lord Hailsham, I regret to say that his proposition regarding the revocation of Article 50, for the purposes of contemplating a future and final referendum, is unworkable. The European Court of Justice made it clear in the Wightman decision that Article 50 could be revoked only in circumstances where the relevant member state intended to remain, without qualification, in the EU for the future, and could not be revoked in good faith for other purposes. Therefore, that proposal is not workable.

The noble Baroness, Lady Bull, observed that there might have been some deficit in the references to women’s rights and interests in our extensive debates on this matter. I will not challenge her on that, but I observe that the UK—not just the EU—has sought to lead the way in establishing clear, unequivocal grounds for gender equality and other equality issues. These are values we wish to see maintained after we leave the EU, and they are already enshrined in retained EU law, but we have that in mind.

My noble friend Lady Wheatcroft asked whether future trade deals would be scrutinised by Parliament. There are mechanisms already in place by which international treaties which the Executive propose to enter into may be the subject of scrutiny by Parliament, and they may be considered further in the context of Brexit. That remains the position.

The noble Lord, Lord Hannay, in his sunny way, referred to leaving on 29 March as a reckless gamble. With respect, it is not, and I share the confidence expressed by my noble friend Lord Howell that the Prime Minister’s deal—the withdrawal agreement—will be approved by the House of Commons when it comes to a vote on 12 March or earlier. Sharing that confidence, I do not consider that we are indulging in what was termed a reckless gamble. He also raised the question of where tariffs on beef and other agricultural products will be levied in Ireland. The answer is that there are many schemes by which that can be dealt with, without the erection of a hard border. As he is aware, various parties are looking at various schemes at present in that context.

Regarding the commitment to a referendum by the Labour Party, the noble Lord, Lord Liddle, observed that it took us to the issue of what the question would be, one which he regards as extremely complex, requiring careful consideration, and which he does not appear to regard as having been resolved by Mr Corbyn’s fellow shadow Cabinet members. That will be an issue.

The noble Lord, Lord Anderson of Ipswich, asked a series of questions. First, I agree that a three-month extension would not be sufficient to arrange and carry out a second referendum. No one would take issue with that, but then we do not propose a second referendum. Secondly, could we take part in the EU elections if we had a post-June extension? No, because we have already repealed the relevant domestic legislation for the purposes of having that election. Thirdly, the noble Lord’s point that the EU Parliament could sit without the UK having had an election to the European Parliament is correct, because there are circumstances in which the Parliament will sit when one or more member states has declined to carry out the relevant electoral process. Clearly, as he indicated, the EU Parliament could not be held to ransom in those circumstances. The Parliament and its other institutions would continue to function, albeit without the direct representations of UK MEPs in such circumstances.

Finally, I thank all noble Lords for their contributions to the debate—

[Lord Campbell of Pittenweem]

The noble and learned Lord went out of his way, I think, to say that there is no such thing as a no-deal exit. Am I correct?

[Lord Keen of Elie]

I did not say that at all.

[Lord Campbell of Pittenweem]

He might care to have regard to the frontispiece of the document issued yesterday by the Government, which reads:

“Implications for Business and Trade of a No Deal Exit on 29 March 2019”.


Someone in the Government seems to think that there is such a thing as a no-deal exit.

[Lord Keen of Elie]

Nobody doubts that there could be a no-deal exit because that is what Parliament has provided for in the event that there is no withdrawal agreement. There is no question of that whatever. However, we remain confident that we will have a withdrawal agreement in place and, accordingly, will not have to face a no-deal Brexit.

[A noble Lord]

Is that it?

[Lord Keen of Elie]

I commend the Motion to the House.

Motion agreed.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Monday 18th June 2018 Lords Chamber

Motion D

[Lord Keen of Elie]

Moved by

That this House do not insist on its Amendment 5, to which the Commons have disagreed for their Reason 5A.

5A: Because none of the Charter of Fundamental Rights should be part of domestic law on or after exit day.

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

My Lords, with the leave of the House, I will speak also to Motions P and Q.

These are complex matters which, for understandable reasons, have raised particular concerns across the House. Nobody on any side of this House wants to see our rights and protections diluted when we leave the European Union. I therefore appreciate why your Lordships asked the other place to think again about the exclusion of the Charter of Fundamental Rights and rights of action based on the general principles of EU law. The Commons has done just that and has made it clear—for the third time in the passage of this Bill, and by increasing majorities each time—that it does not want these elements of the EU legal system retained when we cease to be under obligations as an EU member state. In line with established convention, we should now respect the will of the elected House on these matters.

Let me say a little more to address directly some of the concerns that I know some noble Lords still have, and to respond directly to some observations that have been made. The simple fact is that the Charter of Fundamental Rights was not intended to, and did not, create any new rights. As protocol 30 makes clear, it reaffirmed the rights that were already recognised in EU law: that is, law that is being retained in the United Kingdom under the terms of the Bill. As the illustrative analysis we have published sets out in greater detail, most of the fundamental rights protected in the charter are also protected in UK law, most notably under the Human Rights Act 1998, in the common law and via specific statutory protections—for example, those in equalities legislation. Rights saved by the Bill and many of the issues currently justiciable via the general principles of EU law will continue to be justiciable without rights of challenge based specifically on the charter or general principles being retained, because other sources of rights will continue to exist and operate in UK law. This includes, for example, the right to equal treatment and non-discrimination, which will continue to be protected by existing, long-standing domestic rights of action.

By contrast, as we have said, keeping rights of challenge based on the charter or general principles, which could result in disapplication of primary legislation, would be inconsistent with the principle of parliamentary sovereignty. It would also directly undermine the legal certainty provided by the Bill if these rights are retained way into the future but in relation only to a limited and reducing body of law.

The Government have gone to considerable lengths to listen and respond to concerns, particularly in relation to accrued rights. We want to get the balance right. Therefore, in rejecting this House’s amendments, the other place has agreed to a significant additional delay to the prohibition on certain general principles rights of challenge to three years after exit. This approach seeks to strike a balance and a fair compromise between strongly held views on all sides. Inevitably, some noble Lords will still disagree and argue that we should go further, or indeed that we should not go so far, and I understand the range of views. It is, however, for the elected House ultimately to determine these matters and that is what it has done. I suggest that we should now respect that decision.

I turn to the amendment from the noble Lord, Lord Beith, in respect of validity challenges. He is absolutely right to draw attention to this technical yet important issue and I am grateful for the diligent and constructive way in which he has done so. The Government’s view is that it would not in general make sense to create for our domestic courts an entirely new jurisdiction in which they are required to, in effect, step into the shoes of the CJEU and consider, for example, questions around whether the relevant EU institution misused its powers or complied with the applicable procedural requirements. It is nevertheless important to have a mechanism to enable Ministers, with Parliament’s agreement, to provide a right of challenge in domestic law to the validity of retained EU law in some circumstances. The original amendment from the noble Lord, Lord Beith, made on Report, would have removed that right, which is why we could not agree to it and why the elected House has rejected that proposal. I urge the noble Lord and this House to agree with the Commons in that decision. In doing so, however, perhaps I can also try to reassure him and other noble Lords on this point and say a little about the amendment in lieu that he has proposed.

We have always recognised that there may be some circumstances where there is good reason for the validity of an EU instrument to be challenged in a domestic court. One possible example is where a decision of an EU institution or body is addressed to an individual or business in the United Kingdom but later overturned by the CJEU in so far as it applies in the EU. That individual or business will continue to be bound by the decision in the United Kingdom, unless the United Kingdom courts could overturn it as well. We have not proposed—and I do not suggest that we do so today—that regulations would deal only with circumstances where, for example, a public interest test is met. That is, however, an interesting suggestion which we are happy to consider as we discuss with Parliament and others the potential content of any regulations. But I can confirm, for the avoidance of any doubt, that the Government in no way intended to cherry pick which individual cases would be allowed to continue before domestic courts. Any regulations we make would be most likely to specify certain types or class of case that could be brought after exit. To be clear: this is about preserving rights and protections.

This is a technical issue that may specifically impact individuals and businesses and we are therefore keen to listen to and take into account the views of Parliament and undertake consultation with stakeholders. Following that, and subject to parliamentary approval, our intention would be that regulations would be in place before exit day. However, such a right of challenge may be appropriate in circumstances that we cannot accurately predict at this stage—or, indeed, before the point of exit—and the power would therefore permit further regulations to be made after exit if Parliament agrees.

Turning specifically to the amendment in lieu of the noble Lord, Lord Beith, I appreciate the constructive spirit in which he has tabled it but we cannot accept it. The effect of the noble Lord’s amendment would be that in the event that Parliament did not approve any regulations allowing for certain validity of challenges to be available, or if by the point of exit no class of case had arisen that the Government considered—and Parliament agreed—should be permitted, all such challenges would as a default be permissible in domestic law. As I noted, allowing for a right of challenge to the validity of retained EU law would be to hand our domestic courts a wholly new jurisdiction. These are not cases they are able to hear at present. Simply saying that they can now hear all such cases without saying any more would raise uncertainty—for example, which courts would hear these cases and, crucially, who would defend any challenges.

Any regulations the Government brought forward would be able to address these finer points in the specific circumstances they cater for, but the effect of the noble Lord’s amendment would be to provide for a situation where none of this is clear and our courts would, in effect, be left to try and work it out themselves. The core purpose of the Bill is to minimise legal uncertainty as we exit the EU. This amendment therefore works directly against that. I appreciate that may not be the noble Lord’s intention. He wishes to avoid a lacuna in the event that any regulations that allow for challenges are not made before exit. However, I repeat my firm assurance that the Government’s clear intention is to have regulations on this in place before exit day. In the light of that, the amendment is unnecessary. I hope that, in clarifying the Government’s intentions, I am able to address the concerns expressed in both Houses. I beg to move.

Motion D1 (as an amendment to Motion D)

Tabled by

--- Later in debate ---

[Baroness Ludford (LD)]

My Lords, I hope the Government will keep an open mind in the future about the charter in the terms in which the Motion of the noble Lord, Lord Pannick, was framed—that is, as a guide to interpretation of retained EU law. While the noble and learned Lord, Lord Keen of Elie, said that most of the charter rights are found in other sources of law, not all of them are. This may prove to be an issue in the Brexit negotiations, which is why I hope that the Government might have cause and justification to revisit it.

I suggest that in the context of security co-operation and data transfers for the tech industry, this may be a factor in the extent and scope of our co-operation with the European Union in the future. I therefore make a plea that the Government do not totally close their mind to the EU Charter of Fundamental Rights as a guide to interpretation because I think that could be well received by those whom we have to persuade on the scope of co-operation.

[Lord Keen of Elie]

My Lords, I am grateful to all those who have spoken in this debate, in particular the noble Lords, Lord Pannick and Lord Beith, for their observations about engagement with the Government over these matters. The Government have listened and the other place has agreed to significant amendments in respect of certain challenges based on general principles of EU law. Given that, I hope that the House will endorse the decision today.

Motion D agreed to.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

That this House do not insist on its Amendment 10, to which the Commons have disagreed for their Reason 10A.

10A: Because it inappropriately restricts the power in Clause 7(1).

[Lord Keen of Elie]

My Lords, with the leave of the House, I will speak also to Motion L and Motion M. The scope of the powers in this Bill is not an issue that either House has taken lightly, and it is not one that the Government take lightly, either. Before the Bill was introduced, the Government set out the shape and size of the task ahead and why it could be achieved only by the use of relatively broad delegated powers. I do not believe that any noble Lord rejects the premise of that task. All of us here today accept that our law must be corrected so that it works properly when we leave the EU and EU law ceases to apply in the United Kingdom. None of us wishes to face a scenario, once we leave the EU, where the law does not work or where it is left so complex, confusing and convoluted that we spawn a new generation of legal cases that inherit the mantle of Jarndyce v Jarndyce.

My ministerial colleagues in the other place have given examples of where this might come to pass if our law looked as if it was still referring to the EU. We have a duty to do everything we can to provide legal certainty, and I know that I share that goal with Peers across the House. We want a sensible solution, accepting that the powers should be as wide as is required but no wider. The Government have honoured their commitment on this front with the limits we have already put on the correcting power, and indeed the total removal of one of the key powers in the Bill now that further analysis has weakened the case for it.

We have followed the recommendation of your Lordships’ Constitution Committee and have required Ministers to make, alongside any exercise of the key powers in the Bill, a statement that they have “good reasons” for their course of action and an explanation of this to Parliament. We are happy to have been able to do as recommended by the committee, and we are grateful for its constructive and expert approach to this issue.

Noble Lords asked the Commons to consider again the test that should circumscribe the breadth of the correcting power. They have done just that and they have found that a stark test of necessity, while perhaps understandable in everyday language, is not acceptable on the statute book. Indeed the Commons have now voted four times in favour of “appropriate”—I repeat, four times. Given that, I do not think it would be the right course for this issue to return to the Commons yet again, when their view has been so clearly expressed. I ask noble Lords to consider that.

Having accepted what the task ahead is and the principle of how to approach it, we must ask ourselves today what statutory wording will permit the sensible, logical and common-sense corrections we all support without giving unnecessary discretion to Ministers? For example, our approach will permit us to end inappropriate reciprocal arrangements such as those established by the directive on the return of cultural goods, which could leave the EU 27 able to force UK nationals into court to demand the return of cultural objects brought here, with no power for the UK to take legal action in similar situations overseas.

Other potentially unnecessary but sensible and appropriate corrections to deficiencies would include folding the EU’s authorisation process for controlling the export of devices that risk being used for torture into the UK’s own more responsive and effective domestic export control regime. We looked at this important issue and, by sending our amendments, we asked the Commons to look again. As I said, they have done so. They have debated at length and they have decided that it remains clear that only the original wording of the Bill will suffice. I hope that noble Lords will respect the decision they have made. I beg to move.

[Lord Lisvane (CB)]

My Lords, I am very grateful to the noble and learned Lord for setting out the Government’s case with such precision and care. I am very grateful, too, to the number of noble Lords who voted in substantial majorities for the three amendments covered by the three Motions in this group.

The Minister and his colleagues have been rather critical of what I might call the family of amendments that seek to bolt on to the Bill issues of policy. They have said, “No, this Bill has a central theme”. Of course, these three amendments address that central theme. They are about the balance of power between Parliament and the Executive. I am quietly disappointed that, despite the degree to which the Government have moved in terms of explanatory statements and other matters, the Commons did not take this view. I did not see any new material or arguments deployed in the Commons. In particular, I did not see an acknowledgement that a definition of what might fall within the category of necessity—that is, “necessary”— might prevent Ministers being overly constrained by the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it would solicit a very similar answer from the House of Commons.

So I feel that the argument has been made, and perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. On the last point, it is not the Government’s intention to cut corners anywhere in the legislative process. I hope that noble Lords will take some comfort from that.

As the noble Lord, Lord Lisvane, observed, no new arguments were raised in the Commons, which underlines its view on the current state of the legislation. Following the theme of the noble and learned Lord, Lord Goldsmith, in response to the point on the matter of interpretation raised by the noble Lord, Lord Lisvane, it will of course be necessary to interpret the legislation in an appropriate manner.

Motion E agreed.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Mackay of Clashfern]

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.

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

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.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

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]

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.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Goldsmith]

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.

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

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]

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]

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]

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

--- Later in debate ---

[Baroness Hayter of Kentish Town]

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]

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]

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

[Lord Keen of Elie]

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]

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.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

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.”

--- Later in debate ---

[Lord Keen of Elie]

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]

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]

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]

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

[Lord Keen of Elie]

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

[Lord Goldsmith]

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]

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

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Goldsmith]

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.

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

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.

[Noble Lords]

Oh!

[Lord Keen of Elie]

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.

--- Later in debate ---

[Noble Lords]

Oh!

[Lord Keen of Elie]

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 (LD)]

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]

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]

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]

My Lords—

[Lord Keen of Elie]

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]

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]

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

[Lord Keen of Elie]

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

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Hayter of Kentish Town]

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.

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

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 (Lab)]

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]

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

Monday 19th March 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, my noble friend Lord Haskel has raised some important issues, which we should carefully consider—I hope that the Government will do so. He is plainly right that one of the consequences of our departure from the European Union will be the loss of the benefit of EU governance institutions and the standards that they set and enforce. It is worth underlining the word “enforce”, as the noble Baroness, Lady Ludford, did. This is not just about having the standards; it is also about having institutions that are capable of enforcing them.

Of course, the Government will say that we can and we should take over ourselves the setting and enforcement of appropriate standards. But there are challenges in doing that, to some of which the noble Lord, Lord Cormack, has referred. If we are going to have standards in which people have confidence, they need to be delivered by institutions in which there is demonstrable independence. That then gives rise to credibility: the standards and the institutions that set them must be seen to have a distance from Ministers and not be subject to expedient ministerial policy-making. We have so far become used to—indeed, perhaps taken for granted—the fact that there are standards that are set by the current EU institutions which have rigorously debated and taken into account national standards. However, as my noble friend said, we need to be assured that standards—he mentioned in particular general data protection rules, but other standards as well—are not lowered.

That raises an important point. In this Bill, the Government have taken the view, in my view quite rightly, that the fundamental rights that are protected by the European Convention on Human Rights, now by our own Human Rights Act, cannot be changed without parliamentary scrutiny—indeed, only by primary legislation. That is not the position that is proposed in relation to other rights or standards that are, in many people’s eyes, as important. We need clarity on these issues. It is not enough for the Government to say that they recognise the need to maintain high standards of protection; they need to explain how those high standards of protection are in fact to be achieved, and to do that in a way that gives rise to confidence.

My noble friend Lord Liddle raised a further important point—and, if I may say so, he played an important part in this himself in previous years—about the conversations and co-ordinations that have taken place between European countries in setting policy and the standards that go with policy. It would be good to hear from the noble and learned Lord the Minister whether those will be continued and in what way.

There is much to support in this amendment and in the principle that my noble friend has put forward. It is supported by the noble Baroness, Lady Jones of Moulsecoomb, and I do not think for one moment that the fact that she has added her name to it means that the amendment will be looked at less—quite the opposite, I suggest. We look forward to hearing what the noble and learned Lord has to say in response to this amendment.

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

My Lords, I thank the noble Lord, Lord Haskel, for tabling this amendment. I believe the intention behind it is to ensure that United Kingdom law will continue to function effectively after our departure from the European Union. This is, of course, the aim of the Bill, and so I welcome his engagement on its content. However, despite these intentions, the Government cannot accept the amendment.

The Bill will take a snapshot of European Union law—including the rights, freedoms, protections and standards it brings—so far as it applies within the United Kingdom immediately before exit day, and seek to retain it in UK law, so far as is practical. It will then be our priority to ensure it will be able to operate consistently and without deficiency within our domestic law through the use of powers given in the Bill. This includes ensuring that there is suitable provision for the transfer of existing functions and roles carried out by the EU or its institutions while we are a member. It is of course right that the Bill is able to do this.

The United Kingdom has a long-standing tradition, one that predates 1972, of ensuring that our rights and standards are protected domestically, and of fulfilling our international obligations with regard to these matters. The decision to leave the European Union does not change this. Any regulation to correct a deficiency in retained EU law, within which such rights, freedoms, standards and protections will sit, will of course be subject to the overview of this Parliament: it will be subject to the established procedures of parliamentary scrutiny and, in addition, to the work of the sifting committee that the Leader has indicated will be constructed in this House.

The noble Lord, Lord Haskel, said that standards would be subject to Ministers. But standards, I suggest, will be subject to parliamentary scrutiny. I say the same in response to the noble Baroness, Lady Ludford. We will retain the law and it will not be empty of meaning because again, in so far as we implement it in domestic law, it will be the subject of parliamentary scrutiny. The noble Baroness, Lady Jones, suggested that retained EU law would be worthless if there were no body to oversee it, but that body will be Parliament. No body is better equipped for that task than Parliament.

On policy co-ordination, referred to by the noble Lord, Lord Liddell, of course, that is bound to be a matter of negotiation and not one for this particular Bill. We want to negotiate questions of the extent and depth to which we co-operate with members of the EU after we leave. As regards standards themselves, is it suggested that because we are in Europe—as the noble Lord, Lord Cormack, observed, we still are and still will be—but not in the European Union, somehow our standards are bound to fall? Is it supposed that Switzerland or indeed Norway do not maintain rigorous standards in regard to consumers, the environment and so on?

[Baroness Ludford]

Norway is in the single market. That is why it has to uphold the same standards, and Switzerland is de facto in the single market.

[Lord Keen of Elie]

Switzerland is not de facto in the single market. Switzerland has a multiplicity of agreements with the EU that have been negotiated on a bilateral basis, which is the form of negotiation that we intend to carry out in due course. Membership of the EU is not, as I say, the touchstone of rigorous standards either in Europe or beyond.

With regard to the points raised by the noble and learned Lord, Lord Goldsmith—

[Baroness McIntosh of Pickering (Con)]

Is my noble and learned friend saying that we are now seeking an EU/Swiss-style agreement?

[Lord Keen of Elie]

I am not suggesting that for a moment. I was saying that these matters will be the subject of negotiation going forward; they are not ones for this Bill. What one cannot suggest is that, because we are taking the step of leaving the EU, we are determined somehow to see any diminution in the standards and obligations that we maintain at the present time. As this House will be well aware, the Bill is not designed to legislate for the major elements of any future agreement between the United Kingdom and the EU. Indeed, we cannot unilaterally legislate for our future relationship with the EU without the withdrawal agreement, or seek pre-emptively to provide for the possibility of maintaining particular functions or powers within the UK after we leave the EU.

This Bill instead aims to provide a stable and certain domestic statute book on exit day—a platform—irrespective of the result of the negotiations in any final agreement with the EU. The proposed amendments, therefore, do not assist in that process, but would potentially disrupt any negotiating process that is to be carried on. At the end of the day, I respectfully suggest that the amendment would not benefit the task we have in hand and I therefore urge the noble Lord to withdraw it.

[Lord Goldsmith]

Before my noble friend responds, will the Minister give an assurance as to this? He has talked about the legal difficulties involved and the legal freedom that the Government want, but is he able to give an assurance that whatever protections and standards we leave the European Union with will not thereafter be diminished, save with the decision of Parliament through primary legislation?

[Lord Keen of Elie]

Clearly, the noble and learned Lord has misrepresented to an extent what I just said to the House, because I did not refer to primary legislation—those words slipped into his observation. However, I did point out that, of course, under the process that we have and will have in place, there will be parliamentary scrutiny of the steps we take to implement these provisions in respect of EU retained law after we leave.

[Baroness Young of Old Scone (Lab)]

Can the noble and learned Lord clarify the position on the provisions, which the Government will consult on imminently, concerning the “governance gap” that will open up on environmental issues after the withdrawal Bill has been enacted? At least a proportion of the powers and functions listed in subsection (2)(a) to (f) of the proposed new clause will be ascribed to a body whose nature is not yet known but is soon to be subject to consultation. It will deal with reviewing and reporting on compliance with legal requirements, monitoring and measuring, and certainly publicising information. Can the noble and learned Lord tell us what the difference is between the body that is going to fill the environmental governance gap and the same sort of governance gap that will open up with respect to other functions outside the environmental field?

[Lord Keen of Elie]

My Lords, with respect, I fear that I do not properly understand the question posed by the noble Baroness, but I will read Hansard, and in so far as I do understand it, I will write to her.

--- Later in debate ---

[Baroness Kramer (LD)]

My Lords, does the Minister agree that this particular set of issues is absolutely crucial to small businesses? He will know that many small businesses are happy to export to the European Union because they have protection in case of insolvency; it is as solid as if there were an insolvency from a customer or supplier literally round the corner or down the street.

There are many reasons why those companies choose not to export to many of the markets where we so often hear there are such extraordinary opportunities. It is because—especially for small businesses, I am afraid—there are long histories of non-payment. Large businesses can afford to retain international lawyers in different locations across the globe and across borders. Large companies—especially multinationals—frequently have contacts in governments, at the appropriate level, to make sure that their interests are protected, but that very rarely applies to small businesses, so this protection is crucial.

[Lord Keen of Elie]

My Lords, I share the concerns that the amendment raises about the consequences of failing to maintain our co-operation with the EU in matters of civil justice, in particular, in this present context, matters of insolvency. On the matter of meetings with officials and others, the noble Baroness, Lady Hayter, may recollect that we discussed this topic when we met last week, albeit briefly. It might be that I am not the appropriate individual with whom more specialist bodies would wish to take this matter forward, but I would be content to pass on her request for a meeting to BEIS. I am confident that it will have no difficulty arranging that for the convenience of all parties.

Clearly, should we fail to agree a replacement for our current arrangements when we leave the EU the impact will be felt by both the UK and EU member states. I therefore believe that it is in our mutual interest to agree a close and comprehensive arrangement regarding insolvency, as well as other matters of civil judicial co-operation.

I do not think I can accept the suggestion from the noble Baroness, Lady Kramer, that a small company in the UK can trade as if it is as solid as a domestic supplier that it was supplying in the context of the insolvency regulations. They do not work quite as simply as that. The insolvency regulations as restated in 2015 determine that the insolvency regime for each country stands alone. Each member has its own rules, but the recast 2015 regulations identify the debtor’s centre of main interest and treat that as the principal proceedings for the purposes of insolvency. For example, if we have a centre of interest for a company in the United Kingdom and a liquidator is appointed in the United Kingdom, that appointment would generally be recognised throughout the EU. That is certainly a step better than the insolvency regimes that operate internationally beyond the EU, such as the UNCITRAL rules, where there is not that element of recognition and it is necessary to take further steps if judicial co-operation is secured by way of litigation in each individual country. I recognise the benefits and advantages of the EU regime, although some would say that it is far from perfect or uniform.

There is a clear need for effective dispute resolution and effective jurisdictional recognition when a company enters insolvency or needs to restructure. Indeed, in its absence those who suffer will be the creditors of the company, because the cost of carrying out the insolvency process will be increased. The UK has already said in its position paper, Providing a Cross-Border Civil Judicial Cooperation Framework, published last August, that we wish to continue with substantively the same principles of co-operation as we already have in civil judicial co-operation, including insolvency. As the noble Baroness, Lady Hayter, observed regarding the implementation period, the transition agreement from the EU referred at paragraph 63 to at least a starting point for that for insolvency processes which commenced before the exit date. We wish to build on that and ensure that we can maintain a suitable regime. We have no difficulty with that and we believe that the EU 27 will also recognise the importance, relevance and advantages of maintaining a single insolvency regime with the United Kingdom after our exit date. As I said, that would be based, as we hope it is at present, on identifying any debtor’s centre of main interest and treating it as the primary place from which insolvency proceedings should emanate and be recognised in the other EU states.

Of course, all of this involves a degree of reciprocity. That is why it will have to be the subject of the ongoing negotiation. We consider that at the end of the day we will have the means to persuade the EU 27 that it is in everyone’s interest that, in general, civil judicial co-operation should be maintained. In the context of the present amendment, that should include the insolvency regime. I hope that what I have said will reassure the Committee and the noble Baroness, Lady Hayter, that we are committed to seek and retain current co-operation with the EU on cross-border restructuring and insolvency following our exit from the EU. In that context, I invite the noble Baroness to withdraw her amendment.