European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Goldsmith (Lab)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Goldsmith]

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

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

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

[Lord Keen of Elie]

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

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

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

[Lord Goldsmith]

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

[Lord Bassam of Brighton]

May I ask the Minister a further point? I am trying to help him. He seems to be suggesting that this provision is a mere tidying up facility that is available to a Minister as a consequence of this Bill. I understand that point, but will he describe the sort of tidying up that he envisages this power being used for? I think that is what acts as a driver of our concerns. I can understand if it is a practical measure to do with something that is clearly a defect, but I want some reassurance, which perhaps should be placed in the legislation. I want to understand what the provision will be used for and its consequences.

[Lord Keen of Elie]

I am obliged to the noble Lord for his assistance, which is always welcome. I do not agree with the point made by the noble and learned Lord, Lord Goldsmith, regarding the breadth of the provision. This is a standard type of power contained in many Acts of Parliament to deal with consequential issues, such as those alluded to by the noble Lord, Lord Bassam. A very similar power can be found in the Scotland Act 1998, in the Northern Ireland Act 1998, in the Government of Wales Act 1998, and in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO. All these statutory provisions have a similar consequential power for the same purpose, so this is not unique, exceptional or unusual.

However, I understand concerns being expressed about the scope of the power and the way it will be used. I notice the reference by the noble Lord, Lord Lisvane, to the use of the term “appropriate”, which some, of course, often consider to be inappropriate in a statutory context. I hear what is said about making clear that this is a consequential power that will be needed to repeal provisions.

The noble Lord, Lord Bassam, asked for examples. If we look at the various statutory provisions for accession of other countries to the EU—the Croatian accession is the most recent—which amend the ECA, it is necessary to address that sort of primary legislation. If we look at the provisions of the European Union (Approvals) Act 2017—

[Baroness Ludford (LD)]

I thank the Minister for giving way. He cited some other examples. I admit that I am not familiar with devolution statutes and the consequential powers in them, but we have to take account of the context in which this legislation is being made and the considerable worries about the potential use to which they could be put, which is surely more than the Croatian accession. The Government cannot ignore the worries that these powers—in the context of the Brexit negotiations, future relationships, trade deals and whatever—could be used in a way which could significantly affect existing rights and remedies.

[Lord Keen of Elie]

With respect, it appears to me that some of the fears being expressed are not about the use of these powers, but about their misuse. As the noble Baroness, Lady Ludford, observed, we have to see this provision in context. It is to be applied to the consequences of the Bill becoming law.

The noble Lord, Lord Bassam, asked for further examples. There are many examples in primary legislation of where consequential amendment will be required. I will not elaborate on them at this stage. For example, there are provisions in all the accession Acts that would have to be regarded as necessary to clear up in the context of the statute book. There are provisions in such things as the Legislative and Regulatory Reform Act 2006, which would again have to be addressed in this context as a consequence of our removal when the Bill becomes law.

What will be required is a meaningful indication of the type of change that is needed to keep the statute book in reasonable order after our departure from the EU. In my respectful submission, where there may be concern about the misuse of this consequential power we are of course alive to concerns that are expressed. It may be that it turns largely not on the way Clause 17(1) is presently framed, but on the use of a term such as “appropriate”. We will give further consideration to the use of that language and whether that is the way this consequential—I stress “consequential”—power should be employed in this context.

I hope that gives noble Lords some degree of reassurance about the intention here. I suggest that the removal entirely of the consequential power contained in Clause 17 would have a materially adverse effect on the way the Bill can be properly implemented to bring the statute book into proper order following our exit from the EU. I hope at this stage that the noble Lord will see fit to withdraw the amendment.

[Baroness Taylor of Bolton (Lab)]

The Minister has just used the phrase that it is “not our intention” to use these powers. That is one of the difficulties that the Committee has on many of the issues that we have raised. The Government repeatedly say that it is not their intention to abuse these powers, yet they are taking powers which clearly can be abused in the future.

[Lord Keen of Elie]

With respect to the noble Baroness, I do not believe that any responsible Government would contemplate abusing powers given to them by Parliament. Indeed, if they did, they would be brought up very short by a sovereign Parliament.

[Lord Wigley]

Could I press the Minister further on the point that I raised? Will he clarify whether the powers that are being accorded in this clause will enable a Minister at Westminster to overrule powers normally exercisable by Ministers in Cardiff or Edinburgh?

[Lord Keen of Elie]

I do not believe that they would be employed to overrule powers that are legitimately being exercised under the devolved arrangements. That is not their purpose. Their purpose is to make consequential amendments that will bring the statute book into line with our departure from the EU.

[Lord Wigley]

I am sorry, but those consequential amendments may well include the need to change an instrument that is being exercised in Scotland or Wales. If that does not happen, does it give the power for a Minister in London to exercise those powers?

[Lord Keen of Elie]

Ultimately, the UK Parliament would have the power to ensure that the statute book in the devolved Administrations also reflects our departure from the EU.

[Lord Wallace of Saltaire (LD)]

When responding to amendments, the Minister has, on a number of occasions, said that the Government will give further consideration to the points made. We are now coming towards the end of Committee and will then be preparing for Report. Could the Minister give us more of an explanation of what further consideration will mean on the very many points that have been made? When we come to Report we will have six days, and, as we all know, a large number of issues have been raised. Will the Government be consulting on these? Will they be able to tell us before we start Report what changes they wish to make or the date by which government amendments might be published? Otherwise, Report stage will be as lengthy and as difficult as Committee stage has proved to be.

[Lord Keen of Elie]

Clearly, when I say that we will give consideration to these matters, I mean that I am making more work for myself in that context. Of course we are going to discuss with officials how best to structure this legislation to meet the concerns that have been expressed. That may lead to amendments, in which case they will be available before Report, and it may not, in which case I will be happy to indicate at Report why such amendments have not been brought forward.

[Lord Pannick]

Will the Minister address the concern I expressed that the breadth of Clause 17(1) is such that it could be used by Ministers to evade the restrictions that will be contained in the other powers that Ministers enjoy under Clauses 7 to 9, particularly in the light of paragraph 17 of Schedule 7? Will he consider that point?

[Lord Keen of Elie]

I will certainly give consideration to that point, but it is not immediately clear to me that the clause could be used to evade those limitations. I will address it in due course.

[Lord Judd (Lab)]

Before we conclude this part of our deliberations, I refer back to what my noble friend said. I have every respect for the Minister—I mean that. I am quite sure that he would never, with ministerial responsibility, go against the clear intention of Parliament with these residual powers. But are we absolutely certain, with all the unpredictability and turbulence of politics across the world today, that every possible Administration would act as responsibly as he would?

[Lord Keen of Elie]

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

[Lord Goldsmith]

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

[Lord Keen of Elie]

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

[Lord Liddle]

My Lords, I welcome that assurance from the Minister. I have been surprised by the passion that this short debate has aroused. It raises many serious issues about what powers the Government are giving themselves as a result of this Bill. The Minister is aware of the concerns of the noble Lord, Lord Pannick, and my noble and learned friend Lord Goldsmith about this power. To my non-legal mind, when my noble and learned friend talks about the power that is in consequence of this Act because it repeals the European Communities Act 1972, the potential scope of what could be done is extremely large. When we come back to this on Report I hope that the Government will be able to provide us with some assurance that the scope will not be impossibly big. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, as has been noted, this is in a sense a continuation of a lengthy debate we had in Committee in response to, I think, Amendment 33, tabled by the noble Lord, Lord Pannick. I will not repeat all that was said from the Dispatch Box in the context of that debate but I hope the noble Lord, Lord Bassam, will not think that, because I am taking this amendment relatively briefly, I am taking it relatively lightly. Indications were given at the time of that earlier debate as to our consideration of this matter.

EU law is of course comprised of many things, including domestic primary and secondary legislation, converted EU regulations, decisions and EU legislative and non-legislative provisions. Due to the breadth of retained EU law, it is therefore unique in its nature. That is why the Government deliberately chose to tread carefully and not simply to assign this new category of law, retained EU law, to a single category of domestic legislation. Treating all retained EU law as primary legislation may be possible but such a broad approach will inevitably raise unforeseen and uncertain consequences—the very thing we want to avoid. If one looks at an EU provision that deals with the content of a particular chemical and those contents are to change, are we to address that only by way of primary legislation? I suspect that if that were the case, we would be sitting much later than we have in the last few days of this Committee.

Again, treating it all as secondary legislation may also pose considerable difficulties because of the interaction between retained EU law and other domestic legislation which is in the form of primary legislation. This is not a straightforward exercise, which is why it was thought fit to identify certain areas where it should be treated as primary—for example, in the context of human rights—and other areas where Ministers would be allowed the opportunity to consider how best to deal with the issue, albeit as cases arise.

I notice that there is a concern about how the matter is to be approached but it is not one that identifies a universally approved approach. I noted what my noble and learned friend Lord Mackay said about the treatment of retained EU law in the context of a qualification with regard to what is brought into domestic law by way of Clause 2, for example, and what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said about Professor Paul Craig’s solution, which we discussed previously in Committee in reference to Amendment 33.

We have taken that on board and we believe that at present, the position we have adopted is the correct one for achieving maximum legal certainty after exit day and for ensuring the most appropriate outcome across the domestic statute book. Equally, we recognise the need to look at alternatives in the context of, for example, Professor Paul Craig’s proposals, and perhaps to look at it in a different context altogether: that of outcomes rather than, in the first instance, identification of whether it is primary or secondary. That is what we indicated we would do when this matter came up for debate before in Committee, and what we are doing. In that context, I hope the noble Lord will see fit to withdraw his amendment at this time.

[Lord Bassam of Brighton]

My Lords, I am intrigued by the Minister’s reply. I guess I shall have to look back at the debate on Amendment 33, which he referenced earlier, but I am far from satisfied on this point. While I have been sitting here, I have been thinking of an example of what Ministers can actually do with pieces of primary and secondary legislation, and one comes to mind.

Towards the end of our time in government, an amendment was passed in this House very much against my better judgment; I was rather horrified by it. It basically had the effect of enabling the Secretary of State to bring forward an order to give effect to the particular amendment. I went back to the department and said, “Look, this is terrible. We lost this vote in the House yesterday and it means that you will have to do something that we really do not want to do and that would be quite wrong”. The Secretary of State very simply said to me, “Don’t worry about it: I simply won’t bring forward the order”. That is a powerful position to be in if you are Secretary of State. The order was never forthcoming. I am sure there are many examples of a similar nature that will be adopted by Secretaries of State, not just now but in the future.

That makes me think that we may be giving a Secretary of State—a Minister—far too much by enabling them to decide what is and is not secondary and primary legislation. I do not know whether that was in the mind of the Constitution Committee when it particularly picked this out, but it was right to be alive to that concern. I was grateful for the support for the amendment from the noble and learned Lord, Lord Mackay of Clashfern, because he is long experienced in these matters. He has a very wary and thoughtful eye on legislation and what it is.

I accept that we are in somewhat exceptional circumstances in that we are dealing with EU retained law, but the Minister will have got the message that we are very concerned and the concern is rather broad. In the end, what we put in primary legislation makes a difference and has the effect of changing people’s lives. Giving too much power to Ministers to determine what they can sneak in through secondary legislation, where we can do far less about it and do far less to improve its quality, is a proper constitutional concern that this House might express. For the moment, I beg leave to withdraw my amendment.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Foulkes of Cumnock]

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

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

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

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

[Baroness Hayter of Kentish Town]

My Lords—

[Lord Keen of Elie]

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

[Baroness Hayter of Kentish Town]

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

[Lord Keen of Elie]

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

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

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

[Lord McConnell of Glenscorrodale]

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

[Lord Keen of Elie]

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

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

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


The definition of those principles includes the line:

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


Then there is a list of principles:

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


for example, to,

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

United Kingdom.

--- Later in debate ---

[Lord Wigley]

Will the noble and learned Lord give way?

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

[Lord Purvis of Tweed]

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

[Lord Keen of Elie]

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

[Lord McConnell of Glenscorrodale]

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

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

[Lord Keen of Elie]

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

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

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

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

[Lord Forsyth of Drumlean (Con)]

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

[Lord Keen of Elie]

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

[Baroness Hayter of Kentish Town]

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

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

No. With great respect—

[The Archbishop of York]

My Lords—

[Lord Keen of Elie]

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

[The Archbishop of York]

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

[Lord Keen of Elie]

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

[Lord Morris of Aberavon]

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

[Lord Keen of Elie]

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

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

[Lord McConnell of Glenscorrodale]

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

[Lord Keen of Elie]

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

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

[Lord Thomas of Gresford]

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

[Lord Keen of Elie]

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

[Lord Thomas of Gresford]

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

[Lord Keen of Elie]

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

[Lord Hope of Craighead]

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

“make, confirm or approve subordinate legislation”,

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

[Lord Keen of Elie]

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

[Lord Hope of Craighead]

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

[Lord Keen of Elie]

I am content to indicate that we will look at these points.

[Lord Hope of Craighead]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Hope of Craighead]

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

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

302A: Clause 11, page 7, line 25, leave out subsections (1) to (3) and insert—
“(1) In section 29(2)(d) of the Scotland Act 1998 (no competence for the Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 30A(1)”.(2) After section 30 of that Act (legislative competence: supplementary) insert—“30A Legislative competence: restriction relating to retained EU law(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Scottish Parliament.(3) In addition—(a) a Minister of the Crown must (unless the regulations only relate to a revocation of a specification) consult the Scottish Ministers before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, and(b) see paragraph 6 of Schedule 7 (duty to make explanatory statement about regulations under this section).”(3) In section 108A(2)(e) of the Government of Wales Act 2006 (no competence for the National Assembly for Wales to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in section 109A(1)”.(3A) After section 109 of that Act (legislative competence: supplementary) insert—“109A Legislative competence: restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown. (2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the Assembly’s legislative competence.(3) In addition—(a) a Minister of the Crown must (unless the regulations only relate to a revocation of a specification) consult the Welsh Ministers before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, and(b) see section 157ZA (duty to make explanatory statement about regulations under this section). (4) No regulations are to be made under this section unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.”(3B) In section 6(2)(d) of the Northern Ireland Act 1998 (no competence for the Northern Ireland Assembly to legislate incompatibly with EU law) for “incompatible with EU law” substitute “in breach of the restriction in section 6A(1)”.(3C) After section 6 of that Act (legislative competence) insert—“6A Restriction relating to retained EU law(1) An Act of the Assembly cannot modify, or confer power by subordinate legislation to modify, retained EU law so far as the modification is of a description specified in regulations made by a Minister of the Crown.(2) But subsection (1) does not apply to any modification so far as it would, immediately before exit day, have been within the legislative competence of the Assembly.(3) In addition—(a) a Minister of the Crown must (unless the regulations only relate to a revocation of a specification) consult the relevant Northern Ireland department before laying a draft of a statutory instrument containing regulations under this section before either House of Parliament, and(b) see section 96A (duty to make explanatory statement about regulations under this section).(4) In subsection (3)(a) “relevant Northern Ireland department” means such Northern Ireland department as the Minister concerned considers appropriate.(5) Regulations under this section may include such supplementary, incidental, consequential, transitional, transitory or saving provision as the Minister making them considers appropriate.””

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

My Lords, I shall speak also to the other government amendments in this group. We have put forward these amendments to facilitate scrutiny of the Government’s current position on Clause 11. They reflect the status of our discussions with the devolved Administrations, and noble Lords will be aware that our discussions with the Scottish and Welsh Governments are continuing. We remain convinced that this Bill is the right vehicle for providing legal certainty across the UK and that we should reach agreement with the Scottish and Welsh Governments. As such, the Government do not seek a vote on these amendments today and we will withdraw or not move them at the conclusion of the debate, but we will reflect seriously on the points made and incorporate them into our discussions.

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

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

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

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

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

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

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

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

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

[Noble Lords]

Oh!

[Lord Beith (LD)]

Might noble Lords be referring to the mixed metaphor they have just heard?

[Lord Keen of Elie]

May I proceed to split an infinitive?

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

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

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

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

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

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

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

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

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

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

Amendment 302B (to Amendment 302A)

Moved by

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[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Newby (LD)]

They go to Brussels.

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[Lord Keen of Elie]

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

Amendment 302B (to Amendment 302A) withdrawn.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

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

The noble and learned Lord, Lord Wallace of Tankerness, said that this is a “no-brainer”. I have to confess that, at that moment, my noble friend Lord Beecham said to me that he thought the noble and learned Lord was describing the Government. However, I hope the Government do have brains and will find a way to amend this Bill so that we do not have to amend it once it is an Act, in order to make in law an assurance that has already been given.

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

My Lords, I am pleased to be able—I use that term advisedly—to respond to the issues raised in the context of these amendments. Given the scope of the contributions, I will perhaps begin by touching on one or two points that have been made by noble Lords in the debate.

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

“the Agreement should also establish”.

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

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

[Lord Foulkes of Cumnock]

It is not a treaty.

[Lord Keen of Elie]

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

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

[Lord Adonis]

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

[Lord Keen of Elie]

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

[Baroness Hayter of Kentish Town]

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

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

[Lord Cormack]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering]

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

[Baroness Ludford]

My Lords—

[Lord Keen of Elie]

With great respect to the noble Baroness, I think that I must respond to my noble friend Lady McIntosh.

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

[Baroness Ludford]

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

[Baroness Ludford]

Yes, I would say to the sedentary noble Lord.

[Lord Keen of Elie]

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

[Lord Patten of Barnes (Con)]

My Lords—

[Lord Keen of Elie]

Perhaps I may make a little progress.

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

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

--- Later in debate ---

[Lord Wigley]

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

[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock]

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

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[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock]

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

[Lord Keen of Elie]

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

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

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

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

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

[Lord Liddle]

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

[Lord Keen of Elie]

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

[Lord Patten of Barnes]

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

[Lord Keen of Elie]

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

[Lord Adonis]

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

[Lord Keen of Elie]

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

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[Lord Adonis]

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

[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock]

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

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

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[Lord Keen of Elie]

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

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

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

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

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

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

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

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

[Baroness Ludford]

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

“another EU entity or the EU”,

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

[Lord Keen of Elie]

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

[Lord Pannick]

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

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

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

Leveson Part 2: Sunday Times

Lord Keen of Elie Excerpts

Wednesday 7th March 2018 Lords Chamber

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

My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer given by my right honourable friend the Secretary of State for Digital, Culture, Media and Sport to an Urgent Question in the other place. The Statement is as follows:

“This morning we saw reports in the media of a potential fraud and data protection breach by a former private investigator. The allegations are of behaviour that appears totally unacceptable and potentially criminal. Investigation is therefore a matter for the police and the House will understand that there is only so far I can go in discussing the specific details and allegations. More broadly, some people have already formed the conclusion that this revelation should require us to change policy on press regulation. Policy, of course, should always be based on all available information.

It is worth noting that the activity described apparently stopped around 2010, before the establishment of the Leveson inquiry. Indeed, it was precisely because of cases such as this that the Leveson inquiry was set up. This sort of behaviour was covered by the terms of reference of that inquiry, and Mr Ford’s activities were raised as part of the inquiry.

As we discussed in the House last week, and then again on Monday, there have been three detailed police investigations. A wide range of offences were examined and more than 40 people were convicted, and many went to prison. Today’s revelations, if proven, are clearly already covered by the law, and appear to be in contravention of Section 55 of the Data Protection Act 1998. As described, they would also appear to be in contravention of the new Data Protection Bill currently before this House.

What is more, the fact that this activity stopped in 2010 underlines the point that the world has changed. Practices such as these have been investigated, and newspapers today are in a very different position from when these alleged offences took place. This view is in fact strengthened by today’s example because the behaviour we have discovered today took place before the Leveson inquiry, and existing law is in place to deal with it. Criminal behaviour should be dealt with by the police and the courts, and anyone who has committed a criminal offence should face the full force of the law.

The future of a vibrant, free and independent press matters to us all. We are committed to protecting it. We want to see the highest of standards. We must face the challenges of today to ensure that Britain has high-quality journalism and a high-quality discourse to underpin our democracy for the years to come”.

[Lord Stevenson of Balmacara (Lab)]

My Lords, the shocking revelations some of the press and other media earlier today about allegations of blagging commissioned by the Sunday Times are, in the words of the Secretary of State,

“totally unacceptable and potentially criminal”,

and the right thing is for them to be investigated by the police. However, the key issue is that the Secretary of State has refused to reconsider the decision to close the Leveson inquiry. Let us be clear: this decision was not supported by the vast majority of those who responded to the public consultation and it was strongly opposed by the chair of the inquiry, Sir Brian Leveson, whose letter is available in the Library.

I say again to the Government that letting down the victims of this type of press activity is breaking all the promises they were given, and is a disgrace. In light of this, I wonder whether Minister can explain why it is not in the public interest to complete the Leveson inquiry, given that, far from being an isolated event from a previous age, today’s revelations confirm that phone hacking and other criminal behaviour was more widespread and affected a wider range of individuals than was disclosed in the written evidence given to part 1 of the inquiry, and that some of the oral evidence given to the inquiry was, at the very least, incomplete, so that, in Sir Brian’s words, it,

“remains unclear exactly how widespread these and similar practices have been throughout the print media”.

It may be that this sort of behaviour has ceased but it is in the public interest to be certain about that. Neither Leveson part 1 nor the civil or criminal trials have provided definitive answers about who did what to whom. Sir Brian suggests that the public interest would be served only by,

“a detailed, reasoned report which covers the whole of the available evidence”.

While there is much about the new press regulator—IPSO—that can be welcomed, the Secretary of State indicated in the other place today that more needs to be done in terms of IPSO’s as yet untested low-cost arbitration system, and in relation to the way apologies and retractions are dealt with. It is surely in the public interest to get this right so that victims of press intrusion can actually get the redress they so patently have not had in the past. Although included in the original terms of reference, there has been no proper investigation of failures of corporate governance and management at News International and other newspapers.

On how to go forward, we currently have two press regulation models, and that is clearly unsustainable. Voluntary self-regulation may well be the right approach, but it will not work unless there is public confidence, particularly when so much has been revealed about wrongdoing, including the events occurring after the publication of the first Leveson report.

When he announced last week that he was dropping the Leveson inquiry, the Culture Secretary said that he was doing do so because he felt the public interest lay in looking forward. I still believe that there is more that unites us on this than divides us. We all want a review of the future of quality journalism and for there to be an assessment of what is required to sustain that for the benefit of our democracy and polity. Where we differ is that we think that the public interest demands that the new inquiry should start with an examination of the recent history, culture and practice of the press, police and politicians. The Government clearly want to draw a veil over that. They should be very careful, particularly when they think they are acting in the public interest.

[Lord Keen of Elie]

My Lords, the Government have to take decisions about what is proportionate, appropriate and in the public interest. Our analysis is that the terms of reference for part 2 have already largely been met and that the cost and time of part 2 would be disproportionate and not in the public interest.

[Lord McNally (LD)]

My Lords, one of the things we did not have last Thursday when the noble and learned Lord made his Statement was Sir Brian Leveson’s letter. In both Houses, an impression was given that Sir Brian basically accepted what was going along. Through Hansard I urge every Member of this House to go to the House of Lords Library and look at the letter, which is a devastating six-page indictment of what this Government have done. He makes it very clear that he wanted to go on with it. He does not accept that IPSO is up and running so wonderfully. He points out examples, such as the Manchester terrorist outrage reported by the noble Lord, Lord Kerslake, where there was intrusive press behaviour, and in the letter he quotes recent worrying police and media collusion. He also challenges the Government about cost. It is a devastating indictment. Does the Minister think that the way the Government have handled this is in any way in the spirit of the Inquiries Act 2005, which requires consultation with the chairman as a safeguard so that no Government will cut and run from an inquiry? That is exactly what this Government have done. Will he again consider a more constructive response to what was said by the Official Opposition? We were getting this right when we were working together. It has gone badly wrong since the Government have started cutting their own deals with the press barons.

[Lord Keen of Elie]

My Lords, of course since the 2005 Act we have to consult the chairman of an inquiry, and that is exactly what we did. Thereafter we had to make a judgment about the way forward. Newspapers today are in a very different position from when the phone-hacking scandal occurred back in 2011. The events just reported relate to a period between 1995 and 2010. We have seen significant reforms to press regulation, and we have discussed that before in this House. It is our considered opinion and judgment that it is not appropriate or proportionate to proceed with part 2 of the inquiry.

[Lord Prescott (Lab)]

My Lords, as an active victim of telephone hacking, I was shocked to hear a private investigator working for the Sunday Times announce that he was sent on fishing expeditions to look at what information there was about me and the whole Labour Cabinet and that in his investigations he conducted illegal acts. That is shocking and totally unacceptable and it is why Lord Justice Leveson has made it clear that he wants to see the inquiry continue. Since the Government continue to take the view that they will not proceed with part 2 or implement Section 40, can the Minister confirm that the House will have legislation before it to make the changes which the Government have talked about? That would presumably mean that we would be allowed to have a vote on the very issue of whether we agree with the Government’s conclusion against the unanimous view of both Houses on having such an inquiry. If that is to be the case on such legislation, would it be useful to have Lord Justice Leveson look at this incident of blagging with the Sunday Times and Mr John Ford so that we could be informed when we have the debate in this House on whether we agree with the Government’s objective to close down a second inquiry or Section 40?

[Lord Keen of Elie]

My Lords, the conduct of John Ford is indicative of criminal conduct. That will be a matter for investigation by the police and, in due course, upon their report, in appropriate terms, consideration of prosecution, with the law in place being sufficient to address it in that way. I am sure the noble Lord will agree that in cases where we see reports of such conduct, it is not for us to prejudge them but to approach them in a calm, considered and coherent way. As regards the proposal to repeal Section 40, as indicated before, it is the Government’s intention to bring forward legislation on that point at an appropriate time.

[Lord Inglewood (Con)]

My Lords, I wonder whether my noble friend may be able to clarify something which has slightly puzzled me about the Statement. The second paragraph states:

“this sort of behaviour was covered by the terms of reference of that inquiry”—

that is the Leveson inquiry—

“and Mr Ford’s activities were raised as part of the inquiry”.

Then the penultimate paragraph states:

“This view is in fact strengthened by today’s example because the behaviour we have discovered today took place before the Leveson inquiry, and existing law is in place to deal with it”.


It seems to me that if the behaviour has been discovered today, it cannot have been in front of the Leveson inquiry. I would like clarification of exactly what is meant here.

[Lord Keen of Elie]

My Lords, my understanding is that some of the allegations attributed to Mr John Ford were known of at the time of the Leveson inquiry and it is in that context that the Statement was made. As to the scope of the inquiry at the time, there are aspects of part 1 that touched upon this, but the terms of reference of the inquiry have also been partly met through the police investigations which took place.

Prisons: Women

Lord Keen of Elie Excerpts

Monday 5th March 2018 Lords Chamber

[Baroness Burt of Solihull]

To ask Her Majesty’s Government what assessment they have made of the suitability of bids for replacement services for women prisons made following the closure of HM Prison Holloway.

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

My Lords, women formerly held at HM Prison Holloway were transferred to other prisons from July 2016. Where equivalent provision was not already in place at the destination prison, HM Prison and Probation Service managed the transition of services from Holloway, giving due consideration to the needs of both service providers and the prisoners that they support. As a result, bids for replacement services were not undertaken.

[Baroness Burt of Solihull (LD)]

My Lords, 11 years ago, the Corston report stated that the Government should create a strategy to replace existing women’s prisons with suitable, geographically dispersed, small, multifunctional custodial centres within 10 years. As the noble and learned Lord has pointed out, Holloway is now closed and female offenders are being redistributed, even on short-term sentences, all over the country, which negatively impacts on the stability of their family life. Is the Minister saying that this policy is not now going to be pursued by the Government?

[Lord Keen of Elie]

My Lords, with regard to the dispersal of prisoners from HM Prison Holloway, there were at the time of the move 241 prisoners who had to be transferred to other prisons. Of those, 114 were transferred to Downview and the remand prisoners, extending to about 56, were transferred to Bronzefield. Both those establishments had suitable facilities and services for the prisoners who were transferred. We are, of course, engaged in looking at and renewing the entire prison estate at the present time, which is one reason for the disposal of HM Prison Holloway.

[Lord Beecham (Lab)]

My Lords, it is nearly two and a half years since the closure of Holloway was announced and 20 months since it closed. As we have heard, prisoners have been moved outside London to Surrey, Kent, Peterborough and beyond, with serious effects on staffing and the well-being of prisoners now further away from their families. More efforts appear to be made to develop the former site than to replace the prison. Why was the closure implemented before accessible, suitable and permanent provision was secured?

[Lord Keen of Elie]

My Lords, accessible and suitable provision was secured for those prisoners who were transferred from Holloway. I have indicated that they were transferred to Downview, in particular, Bronzefield and one or two others. There were individual interviews in respect of all prisoners in order to determine the suitability of their transfer. In addition, 24 service providers at Holloway transferred to Downview and a further 12 were replaced with equivalent provision at Downview. We consider that suitable provision was made in respect of these transfers.

[Lord Farmer (Con)]

My Lords, Brazil’s Supreme Court recently ruled that pregnant women and mothers with children under 12 accused of non-violent crimes will not be held in prison on remand but detained at home. Do the UK courts consider the presence of dependent children when determining whether women awaiting trial for non-violent crimes will be allowed bail?

[Lord Keen of Elie]

My Lords, that is a relevant consideration because, since the Bail Act 1976, it is already presumed that a defendant will be bailed. That is the starting point in consideration of each defendant and that presumption has to be overcome. In looking at the presumption, a court will have regard to the personal circumstances of the defendant, including any caring responsibilities they may have.

[Baroness Hussein-Ece (LD)]

My Lords, perhaps I may press the Minister further on the response he gave to my noble friend’s Question when he said that the women from Holloway were being dispersed around the country, some as far as Peterborough. He made no mention of what is happening for women in London. Holloway was the largest women’s prison and had been in London for many years. What has happened to the women who have a base, families, dependents and children in London, as has just been mentioned?

[Lord Keen of Elie]

As I indicated, the vast majority of those at Holloway were transferred to Downview, which is accessible in that context, and to Bronzefield. We are in the process of renewing the entire prison estate, but that cannot be done overnight.

[Lord Ramsbotham (CB)]

My Lords, for some time we have been promised a strategy on women in the criminal justice system. Can the Minister tell the House when this strategy is expected?

[Lord Keen of Elie]

At the present time there is in development a strategy in respect of female offenders. I am not in a position to say when that will be delivered but we are carrying it through as swiftly as we can.

[Lord Watts (Lab)]

My Lords, the Government have two choices. One is to speed up the process of modernisation of our jails; the second one is to reduce the number of people who are sent to jail. Is it not time they took one of those options on board and took action on this matter?

[Lord Keen of Elie]

My Lords, we are addressing both options.

[The Lord Bishop of Rochester]

My Lords, in relation to the strategy that is under development, can the Minister assure the House that this will include what happens to women upon release, perhaps with particular mention of women’s centres? Some of the most vulnerable people in our society are often released even into homelessness and into places where there is no support.

[Lord Keen of Elie]

My Lords, we are seeking to invest in what is termed the whole system approach in respect of female offenders who are released from custody in order that we can develop a female offender strategy. By 2020 we will have invested £1 million in seed funding investment for community provision.

[Lord Woolf (CB)]

Does the noble and learned Lord agree that in dealing with female prisoners it is most important that great attention is paid to the need for offenders to have regular contact with their children? Otherwise there is a danger of repetition by succeeding generations of what happened in the case of the offender.

[Lord Keen of Elie]

I entirely agree with the observations of the noble and learned Lord. We are concerned to ensure that such contact can be maintained. At another level, of the 12 prisons currently located throughout the country for female offenders, six have mother and baby units.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, of the women who were moved from Holloway when it closed, and aside from those who have since been released, how many have remained where they were sent in the first instance? This is relevant in respect, for example, of contact with families. How many, if any, were moved again after that first move?

[Lord Keen of Elie]

I am not in a position to give specific figures in response to the question from the noble Baroness, but I will undertake to write if they are available and I will place a copy of the letter in the Library.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord has mentioned mother and baby units. Am I right in thinking that those are units for newborn and very young babies? The noble and learned Lord, Lord Woolf, referred to older children and the importance of maintaining family connections beyond the age of six months or so.

[Lord Keen of Elie]

My Lords, I fully acknowledge that, which is why I added the addendum with regard to the number of mother and baby units because contact at that stage is also very important. Clearly we understand the need for contact between female offenders and their families in general.

[Lord Cormack (Con)]

My Lords, is my noble and learned friend entirely confident that sufficient attention is being given to community restorative justice? Would not many of the women who are given custodial sentences be of better use to their families and society if they went down that route?

[Lord Keen of Elie]

My Lords, we are looking at alternatives to custody right across the prison estate. I would add this in response to my noble friend: I am never entirely confident about anything, let alone this issue.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Deech (CB)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord McConnell of Glenscorrodale]

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

[Lord Keen of Elie]

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

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

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

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

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

[Baroness Ludford]

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

[Lord Keen of Elie]

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

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

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

[Lord Marks of Henley-on-Thames]

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

[Lord Keen of Elie]

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

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

[Baroness Sherlock]

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

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

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

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

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

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

--- Later in debate ---

[Lord Adonis (Lab)]

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

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

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

[Lord Keen of Elie]

My Lords—

[Lord Goldsmith (Lab)]

We need to speak from these Benches as well.

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

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

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

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

[Lord Keen of Elie]

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

[Lord Goldsmith]

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

[Lord Keen of Elie]

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

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

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

--- Later in debate ---

[Lord Pannick]

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

[Lord Keen of Elie]

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

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

[Baroness Young of Old Scone (Lab)]

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

[Lord Keen of Elie]

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

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

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


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

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

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

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

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

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

[Baroness Bowles of Berkhamsted]

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

[Lord Keen of Elie]

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

[Lord Pannick]

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

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

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Goldsmith]

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

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

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

My Lords, I thank noble Lords for their brevity.

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

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

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

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

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

[Lord Beith (LD)]

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

[Lord Keen of Elie]

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

[Lord Pannick]

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

[Lord Keen of Elie]

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

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

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

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

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

[Lord Goldsmith]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

[Lord Goldsmith (Lab)]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

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

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

[Lord Wallace of Tankerness]

My Lords—

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

Let me see if I can make it a bit clearer.

[Lord Keen of Elie]

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

[Baroness Bowles of Berkhamsted]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Goldsmith]

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

[Lord Keen of Elie]

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

[Lord Davies of Stamford]

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

[Lord Keen of Elie]

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

[Lord Pannick]

My Lords—

[Lord Keen of Elie]

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

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

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

[Lord Carlile of Berriew]

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

[Lord Keen of Elie]

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

[Lord Goldsmith]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

[Lord Pannick]

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

[Lord Keen of Elie]

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

[Lord Pannick]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Davies of Stamford]

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

Leveson Inquiry Update

Lord Keen of Elie Excerpts

Thursday 1st March 2018 Lords Chamber

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

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable friend the Secretary of State for Digital, Culture, Media and Sport. The Statement is as follows:

“With your permission, I wish to make a Statement on the Leveson inquiry and its implementation, and the freedom of the press.

Over many centuries in Britain our press have held the powerful to account and been free to report and investigate without fear or favour. These principles underpin our democracy and are integral to the freedom of our nation. Today, in a world of the internet and clickbait, our press face critical challenges that threaten their livelihood and sustainability—with declining circulations and a changing media landscape. It is in this context that we approach the Leveson inquiry, which was set up seven years ago in 2011, and reported six years ago in 2012, in response to events over a decade ago.

The Leveson inquiry was a diligent and thorough examination of the culture, practices and ethics of our press in response to illegal and improper press intrusion. There were far too many cases of terrible behaviour and, having met some of the victims, I understand the impact this had. I want, from the start, to thank Sir Brian for his work.

The inquiry lasted over a year and heard evidence from more than 300 people, including journalists, editors and victims. Three major police investigations examined a wide range of offences, and more than 40 people were convicted. The inquiry and investigations were comprehensive, and since it was set up, the terms of reference for a part 2 of the inquiry have largely been met. There have also been extensive reforms to policing practices and significant changes to press self-regulation.

IPSO has been established and now regulates 95% of national newspapers by circulation. It has taken significant steps to demonstrate its independence as a regulator. In 2016, Sir Joseph Pilling concluded that IPSO largely complied with Leveson’s recommendations. There have been further improvements since and, I hope, more to come. In November last year, IPSO introduced a new system of low-cost arbitration. It has processed more than 40,000 complaints in its first three years of operation and has ordered multiple front page corrections or clarifications. Newspapers have also made improvements to their governance frameworks to improve internal controls, standards and compliance. One regulator, Impress, has been recognised under the royal charter.

Extensive reforms to policing practices have been made. The College of Policing has published a code of ethics and developed national guidance for police officers on how to engage with the press. Reforms in the Policing and Crime Act have strengthened protections for police whistleblowers. It is clear that we have seen significant progress, from publications, from the police and also from the newly formed regulator.

The media landscape today is markedly different from that which Sir Brian looked at in 2011. The way that we consume news has changed dramatically. Newspaper circulation has fallen by around 30% since the conclusion of the Leveson inquiry, and although digital circulation is rising, publishers are finding it much harder to generate revenue online. In 2015, for every £100 that newspapers lost in print revenue they gained only £3 in digital revenue.

Our local papers, in particular, are under severe pressure. Local papers help to bring together local voices and shine a light on important local issues—in communities, in courtrooms, in council chambers. As we devolve power further to local communities, they will become even more important. Yet over 200 local newspapers have closed since 2015, including two in my own constituency.

There are also new challenges, which were only in their infancy back in 2011. We have seen the dramatic and continued rise of social media, which is largely unregulated, and issues like clickbait, fake news, malicious disinformation and online abuse, which threaten high-quality journalism.

A foundation of any successful democracy is a sound basis for democratic discourse. This is under threat from these new forces, which require urgent attention. These are today’s challenges and this is where we need to focus, especially as over £48 million was spent on the police investigations and the inquiry.

During the consultation, 12% of direct respondents were in favour of reopening the Leveson inquiry, with 66% against. We agree, and that is the position that we set out in our manifesto. Sir Brian, whom I thank for his service, agrees that the inquiry should not proceed on the current terms of reference but believes that it should continue in an amended form. We do not believe that reopening this costly and time-consuming public inquiry is the right way forward. Considering all of the factors that I have outlined to the House today, Sir Brian has been informed that we will be formally closing the inquiry. But we will take action to safeguard the lifeblood of our democratic discourse and tackle the challenges our media face today, not a decade ago.

During the consultation, we also found serious concerns that Section 40 of the Crime and Courts Act 2013 would exacerbate the problems the press face rather than solve them. Respondents were worried that it would impose further financial burdens, especially on the local press. One high-profile figure put it very clearly. He said:

‘Newspapers ... are already operating in a tough environment. These proposals will make it tougher and add to the risk of self-censorship … The threat of having to pay both sides’ costs—no matter what the challenge—would have the effect of leaving journalists questioning every report that named an individual or included the most innocuous data about them’.


He went on to say that Section 40 risks,

‘damaging the future of a paper that you love’,

and that the impact will be to,

‘make it much more difficult for papers...to survive’.

These are not my words but the words of Alastair Campbell talking about the chilling threat of Section 40—and if anyone knows about threats to the press it is Alastair Campbell. Only 7% of direct respondents favoured full commencement of Section 40. By contrast, 79% favoured full repeal. We have decided not to commence Section 40 of the Crime and Courts Act 2013 and to seek repeal at the earliest opportunity.

Action is needed—not based on what might have been needed years ago, but action now to address today’s problems. Our new digital charter sets out the overarching programme of work to agree norms and rules for the online world and put them into practice. Under the digital charter, our internet safety strategy is looking at online behaviour and we will firmly tackle the problems of online abuse.

Our review into the sustainability of high-quality journalism will address concerns about the impact of the internet on our news and media. It will do this in a forward-looking way so that we can respond to the challenges of today, not the challenges of yesterday.

The future of a vibrant press matters to us all. There has been a huge public response to our consultation. I would like to thank every one of the 174,000 respondents as well as those who signed petitions. We have carefully considered all the evidence we received. We have consulted widely with regulators, publications and victims of press intrusion. The world has changed since the Leveson inquiry was established in 2011. Since then we have seen seismic changes to the media landscape. The work of the Leveson inquiry, and the reforms since, have had a huge impact on public life. We thank Sir Brian Leveson for lending his dedication and expertise to the undertaking of this inquiry.

At national and local levels, a press that can hold the powerful to account remains an essential component of our democracy. Britain needs high-quality journalism to thrive in the new digital world. We seek a press—a media—that is robust and independently regulated; that reports without fear or favour. The steps I have set out today will help give Britain a vibrant, independent and free press that holds the powerful to account and rises to the challenges of our times.

I commend this Statement to the House”.

My Lords, that concludes the Statement.

--- Later in debate ---

[Lord McNally (LD)]

My Lords, it is never a pretty sight to watch a Government capitulating to vested interests. At such a time, it is always useful to look around and see who is smiling. Certainly, Mr Rupert Murdoch will be smiling, as will Lord Rothermere, Mr Paul Dacre and the Barclay Brothers—owners or editors of the Times, the Sun, the Mail and the Telegraph respectively.

It was nearly 30 years ago, in 1990, that the Calcutt commission recommended the setting up of a Press Complaints Commission. The Government of the day welcomed that report and set up the Press Complaints Commission, but warned that it was a “final chance” for self-regulation, or, as the then Secretary of State, David Mellor, put it, the press were,

“drinking in the last-chance saloon”.

The trouble is, what has happened since? There was no learning of lessons or improvement of behaviour, with the addition of corruption and criminality to the cocktail of press failings under the stones that Lord Justice Leveson turned over.

This Statement is littered with high-minded declarations, such as,

“free to … investigate without fear or favour … underpin our democracy … integral to the freedom of our nation”,

and,

“safeguard the lifeblood of our democratic discourse”,

but the truth is that none of those high-minded aspirations would be put at risk either by implementing Section 40 or by continuing with part 2 of Leveson. They are put at risk by behaviour that undermines public trust and diminishes confidence in our democracy.

Will the Minister clarify a number of points? First, will he put in the Library of the House the precise terms on which Sir Brian Leveson believes his inquiry should have continued? Secondly, when will the terms of reference and chair for the new review into the sustainability of the press be announced? Will it be that review or Ofcom that looks at the increasing overlap between print journalism, online journalism and broadcast news, which now sits with the various oversight bodies that regulate them?

The sentence in the Statement with which I agree entirely states that challenges that were only in their infancy in 2011 have now to be faced. Issues such as misinformation, fake news, malicious disinformation and online abuse all threaten both the quality of journalism and the fundamental rights of our citizens.

But this Statement is not a response equal to that challenge. For all the crocodile tears, it will do nothing to preserve local newspapers. It leaves the victims of press abuse with their hurt still raw and unassuaged by any sense of justice done. It was very interesting that a few hours after the Manchester bombing, journalists were knocking on the doors of victims, intruding into the private grief of people who had lost their children that night. So much for conscience and regret.

It leaves a self-serving regulator, IPSO, which is as ineffectual and compromised as its predecessor, the PCC. As the noble Lord, Lord Stevenson, said, it is open to IPSO to come within the Leveson recommendations, and if there were any sense of trying to meet the all-party approach that the noble Lord, Lord Stevenson, advocated, that is what IPSO would do. It leaves our media landscape not, as it should be, a balance of quality, diversity and choice, but again simply an accident waiting to happen, as those guilty of past abuse remain in power, with no sense of contrition or shame, and there is still no effective means of holding the perpetrators of that abuse to account.

It is not even an outcome of the consultation. It is the fulfilment of a squalid political deal between the press barons and the Conservative Party which the Secretary of State will live to regret. What is certain is that the name of Leveson will rank higher in the list of defenders of freedom of the press than any member of this Government.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lords, Lord Stevenson and Lord McNally, for their responses.

[Baroness Hollins (CB)]

My Lords—

[Lord Keen of Elie]

I reassure the noble Baroness, Lady Hollins, that she will have an opportunity to speak, but as a matter of course at this stage I should respond to the observations already made.

One of the principal points made by both the noble Lords, Lord Stevenson and Lord McNally, concerned the terms in which Sir Brian had responded to inquiries. I make it clear that the entirety of Sir Brian’s letter will be available. Indeed, I shall take steps to make sure that it is placed in the Library. It may be subject to redaction if there are particular names which have to be taken out, but I assure noble Lords that the terms of that letter will be available in the public domain and it would not be appropriate for us to give a mere summary of it. I also assure noble Lords that that was always the intention. In fact, I believe that on a previous occasion I indicated that Sir Brian’s response would be available in the public domain.

On the question of what the noble Lord, Lord McNally, referred to as a “political deal”, there is no such political deal; there is a matter of political judgment that has been made in the light of present circumstances. I appreciate that it is not one with which everyone would seek to agree, but that is the responsibility of government and that responsibility has been discharged by this Government in the present circumstances. As for the two amendments that were alluded to by the noble Lord, Lord Stevenson, it is not for me to speculate on how and in what circumstances they will be reversed, but clearly this House will have a further opportunity to consider that matter as and when the Bill comes back before this House and I fully accept that.

On the timetable for the repeal of Section 40, I think that the noble Lord, Lord Stevenson, in posing his question already knew the answer. The words, “at the earliest opportunity” are as far as I am able to go at this stage. If I had further control of the parliamentary timetable, of course I would elucidate upon that response but I am not in a position to do so at present.

On the matter of cross-party approaches to a review, that will, I understand, be the subject of an Oral Question by the noble Lord and by that stage I may be better equipped to respond to his proposal; I would not seek at this stage to speculate.

On one final point, the noble Lord, Lord McNally, said that IPSO could have come within the Leveson recommendations. I remind the House that in 2016 Sir Joseph Pilling felt that IPSO had essentially come within the Leveson recommendations. He concluded that IPSO largely complied with the Leveson recommendations and I believe that that followed upon some adjustments it had made to its arbitration process. With those comments, I again commend this Statement to the House.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am not familiar with the details of the Daily Telegraph article to which the noble Baroness, Lady Hollins, refers, but I note that in due course an apology was made by that publication in respect of the article in question. That in itself might be seen in some quarters as progress.

As regards how the public should see the Government regarding this matter, they have to see the Government taking a decision in the present circumstances, not the circumstances that pertained seven years ago. We have moved on so far as the press are concerned, and I therefore believe that the public can have confidence in the Government’s decision at this time.

[Lord Hunt of Wirral (Con)]

My Lords, first, I declare my interests as set out in the register, in particular as having been the last chair of the Press Complaints Commission and as someone who was involved in setting up an independent regulator which became known as the Independent Press Standards Organisation.

I want to place on record my thanks to Sir Brian Leveson, who I believe did an outstandingly good job. On the first occasion I gave evidence to the Leveson inquiry, he gave me some wise advice. It was to call together all those involved in the publication of newspapers and other similar publications to see whether a self-regulator of the press could be created. His wise opinion was something I sought to follow, and I sought to ensure that Leveson recommendations were followed so far as the continuance of the Independent Press Standards Organisation was concerned. I was particularly pleased—although I had no part in the process—when Sir Alan Moses became the first chairman. All I will say to the Minister is that I am very pleased that he has quoted Sir Joseph Pilling’s conclusion that IPSO largely complied with Leveson’s recommendations, but as the Secretary of State points out, there have been further improvements since, and I hope there are more to come.

As we seek to find the best way forward, speaking as someone who started life as a solicitor acting for a very seriously injured thalidomide child, I shall never forget the power of the press in bringing Distillers to book as the manufacturer of that drug. Ever since then I have believed that we need a vibrant, independent and free press that holds the powerful to account and rises to the challenges of our time. I shall not give up now, but I warmly commend this Statement.

[Lord Keen of Elie]

My Lords, I echo the observations made by my noble friend with regard to the work of Sir Brian Leveson. I think all of us in the Chamber can appreciate the work, the effort and the expertise that he brought to bear in respect of the first part of the inquiry, and the considerable public benefit that has enured from that work and the subsequent report.

[Lord Soley (Lab)]

I never cease to be amazed by the ability of the press to avoid responsibility and by their ability to persuade Conservatives to back down from the threat of proper regulation which protects press freedom. The noble Lord, Lord Hunt, has just indicated, quite rightly, that he was a past chairman of the Press Complaints Commission, as were other Conservative Party members in recent times, when the pressure was on the press.

We talk of press freedom, but can the Minister respond to this point? This all came about because of the abuse by the News of the World, a newspaper with a 187-year history and a readership of more than 3 million. During the course of that 187 years, it did some extremely good investigative journalism, holding the powerful to account. However, when it went down into the gutter as it did, the editor was fired and a couple of journalists were held to account before the court, but the owner, Mr Rupert Murdoch, one of the most powerful people there was, got away scot free. Is this what we call press freedom and holding—as the noble Lord, Lord Hunt, has just said—the powerful to account? How do we hold Mr Murdoch to account? He did not lose his job; it was the journalists who lost their jobs—all the journalists of the News of the World. Is that press freedom? I do not think so.

[Lord Keen of Elie]

I note what the noble Lord says, but I would observe that he referred to the editor as having been fired, and would just underline the term “editor” as distinct from that of “owner”. A person may own many and diverse publications but have no actual belief in the content of those publications and no responsibility, directly, for what is incorporated into them. Indeed, there are many who feel very strongly that the owners of our public press, who are sometimes very wealthy, should not interfere in the editorial control of their newspapers. That has been commented on before.

[Lord Paddick (LD)]

My Lords, one very important aspect of Leveson 2, which is now not going to take place by all accounts, is the examination of the relationship between the press and the police. I declare an interest as a former Metropolitan police officer of 30 years’ service but also as a victim of phone hacking. The Minister talked about extensive reforms to policing practice and cited the guidance from the College of Policing. But what evidence is there that there has been a change in police practice? Noble Lords will recall that, when the Guardian lifted the lid on the real extent of press malpractice, an assistant commissioner of the Metropolitan Police Service stood in front of Scotland Yard and said there was nothing to investigate. I ask again: what evidence does the Minister have of the extent of previous corrupt collusion between the police and the press, and what evidence does he have that police practice has actually changed since then? If the noble and learned Lord has no evidence, does that not show that Leveson 2 is necessary? From his extensive knowledge of the law, he will know the difference between evidence and speculation and the difference between guidance and practice.

[Lord Keen of Elie]

With respect to the noble Lord, I also know the difference between cause and effect. What we were addressing was the potential causes of police malpractice in relation to the press. They have been addressed as outlined by the noble Lord, involving the publication of a code of ethics and the development of national guidance for police officers on how to engage with the press. It has also involved the reforms in the Policing and Crime Act, which have strengthened protection for police whistleblowers. The effect will be seen in due course, but you cannot turn around and say there is evidence of effect. The causes have been addressed; the outcome will show itself in the course of time.

[Lord Lexden (Con)]

Is this not a good day for local democracy in our country? It needs a thriving local press, but as the Statement made clear, a large number of local papers have closed recently. Could my noble and learned friend confirm that there was a strong fear that the enactment of Section 40 would deal a mortal blow to many of those that still remain and whose continuing existence should be given every encouragement?

[Lord Keen of Elie]

I entirely concur with my noble friend on that last point. We have heard repeatedly the concerns that were voiced, particularly by the local press, over the potential impact of the implementation of Section 40 and the adverse effect it would have had upon our local press and consequently upon the maintenance of our local democracy.

[Lord Foster of Bath (LD)]

My Lords, do the Government still believe that the press should be regulated by a truly independent body which fully complies with the criteria laid out by Sir Brian Leveson and was supported on all sides of your Lordships’ House?

[Lord Keen of Elie]

We consider that the present arrangements, particularly those reflected in IPSO, are working well with regard to the press.

[Baroness Jay of Paddington (Lab)]

My Lords, is it not the case that, as I am sure everyone around the House has demonstrated this afternoon, there is a great change in the media? The Minister has said several times that since 2011 things have changed in a great many ways. But are he and the Government really confident that the measures he has outlined this afternoon will be sufficient to deal with the questions which were raised again by the noble Baroness, Lady Hollins, given that of course the digital media are in some senses much worse even than the press in how they use personal abuse and personal statements about individuals to act in an entirely unacceptable way?

[Lord Keen of Elie]

The noble Baroness makes a very good point. That is why we are taking forward the digital charter, so that we can have an overarching programme of work to agree the norms and rules for that online world, as well as for the printed press.

[Lord Wallace of Tankerness (LD)]

My Lords, a number of victims of press intrusion sat in a room with the former Prime Minister, David Cameron, when he solemnly promised that the Leveson inquiry would be completed. If the noble and learned Lord were sitting in the room with those same victims today, what would he say to them in the light of the Statement about that broken promise?

[Lord Keen of Elie]

I am not in a position to comment upon the broken promise but, as the noble and learned Lord observed, he was referring to the position of the former Prime Minister.

[Lord Berkeley of Knighton (CB)]

Can the Minister comment on a line from the Statement? It says:

“Sir Brian, who I thank for his service”—


I concur with that—

“agrees that the inquiry should not proceed on the current terms of reference but believes that it should continue in an amended form”.

Does the Minister believe that what he has set out constitutes that amended form?

[Lord Keen of Elie]

The decision made by government was that part 2 of the Leveson inquiry would not go forward, and I commend to the noble Lord the terms of Sir Brian’s own letter. I do not think it would be appropriate for me to seek to paraphrase him; it is far better that this letter, which will be placed in the public domain, should be considered in that context.

[Lord Judd (Lab)]

My Lords, does the Minister agree—I am sure that if he does, he will have widespread respect—that the press has a long-standing and historical role in society? It is in many ways the lifeblood of democracy itself because a democracy can function well only if the quality and truthfulness of the press can be seen and respected. It is also the guardian of human rights and individual freedoms. Commercial pressures have always been there—on how to make newspapers pay, for example—but, ultimately, it is in fulfilling that historic purpose that they will be respected in society. How can we have a society in which journalists and writers are able to act honestly, and with a real sense of commitment to truth, if they are to be seen as subjects of a regime run by irresponsible owners?

[Lord Keen of Elie]

To a large extent, I concur with the observations made by the noble Lord, Lord Judd. It is for society to demand from the press the sort of press that it requires in order to maintain its freedoms and its democratic traditions. We have to remember that society is also the customer for that press and therefore carries considerable weight in that context. We see that reflected in the demise of the News of the World. It was not just a question of closing down a newspaper; it was a recognition that that newspaper had so lost its way that society—its customers—would have responded in a very particular way in any event. It was not an altruistic act but, I rather suspect, a realisation of the reality of the situation that the newspaper had found itself in.

[Lord Harris of Haringey (Lab)]

The Minister tells us, and the House agrees, that we should all want a thriving local newspaper environment. However, the Statement talks about 200 local newspapers having closed since 2015. What are the Government’s proposals to try to ensure that we continue to have an environment in which there are thriving local newspapers? In similar vein, the Secretary of State talks about issues such as clickbait, fake news, malicious disinformation and online abuse threatening high-quality journalism. What are the Government going to do to reduce the amount of clickbait, fake news, malicious disinformation and online abuse?

[Lord Keen of Elie]

On the first point, the major step that we have taken in order to protect the local press is to announce our intention to repeal Section 40, which hung over the local press like the sword of Damocles. On the question of engaging with online media, which we recognise is a major issue, we are pursuing our digital charter.

[Baroness Falkner of Margravine (LD)]

My Lords, the whole House has heard what the Minister said about the victims and, in answer to the questions of my noble and learned friend Lord Wallace of Tankerness about the pledge by the former Prime Minister, Mr Cameron, to the victims, the Minister responded that he was merely a former Prime Minister. Would he like to take the opportunity to reflect on those words and perhaps come back to the Dispatch Box with a fuller, more compassionate and responsible answer to the question of what the Prime Minister’s pledge means to the victims of press intrusion and abuse?

[Lord Keen of Elie]

I can quite understand the expectation that the second part of the Leveson inquiry would take place, but time has moved on. We nevertheless recognise the position in which these victims found themselves and the harm that was perpetrated against them. I would not seek to diminish that in any way.

[Lord Bassam of Brighton (Lab)]

It is a nonsense for the Minister to say that getting rid of Section 40 will enable there to be a thriving local press. We in this Chamber all know that the reason why there is not a thriving local press is that the value of local advertising has gone down because it has competition from online. The truth is that without the investment going in that advertising unlocks, the local press will continue to shrink. Not a shred of evidence has been produced this afternoon to suggest that with the repeal of Section 40 the local press is suddenly going to bloom and flourish.

[Lord Keen of Elie]

I did not suggest it was going to suddenly bloom and flourish; it may be more a case of managed decline. There are other factors impacting on our local printed media, there is no question of that, but one of those threats was contained within the provisions of Section 40 of the Act.

House adjourned at 3.03 pm.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

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

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

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

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

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

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

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

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

[Lord Adonis]

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

--- Later in debate ---

[Lord Keen of Elie]

I am not sure I understand the question.

[Lord Adonis]

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

[Lord Keen of Elie]

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

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

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

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

[Baroness Taylor of Bolton]

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

[Lord Keen of Elie]

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

[Baroness Taylor of Bolton]

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

[Baroness Ludford (LD)]

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

[Lord Keen of Elie]

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

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

[Lord Foulkes of Cumnock (Lab)]

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

[Lord Keen of Elie]

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

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

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

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

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

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

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

[Lord Keen of Elie]

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

[Lord Pannick]

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

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

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

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

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

--- Later in debate ---

[Lord Foulkes of Cumnock]

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

[Lord Keen of Elie]

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

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

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

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

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

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

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

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

[Lord Wallace of Tankerness]

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

--- Later in debate ---

[Baroness Hayter of Kentish Town]

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

[Lord Keen of Elie]

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

[Baroness Ludford]

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

[Lord Keen of Elie]

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

--- Later in debate ---

[Lord Pannick]

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

[Lord Keen of Elie]

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

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

[Baroness McIntosh of Pickering]

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

[Lord Keen of Elie]

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

[Lord Wigley]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

[Lord Hannay of Chiswick (CB)]

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

[Lord Keen of Elie]

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

[Lord Adonis]

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

[Lord Keen of Elie]

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

[Lord Falconer of Thoroton (Lab)]

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

[Lord Keen of Elie]

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

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

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

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

[Baroness Ludford]

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

“not of a kind recognised”,

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

[Lord Keen of Elie]

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

[Lord Pannick]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering]

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

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

--- Later in debate ---

[Lord Pannick]

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

[Lord Keen of Elie]

My Lords—

[Lord Judge (CB)]

May I just have a few moments?

[Lord Judge]

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

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

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

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

[Lord Keen of Elie]

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

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

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

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

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

“appropriate to prevent, remedy or mitigate—

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

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

[Lord Davies of Stamford]

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

[Lord Keen of Elie]

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

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

[Lord Adonis]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

[Baroness Hayter of Kentish Town]

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

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

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

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