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?

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[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.

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[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.

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[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.

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[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?

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[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.

European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Blencathra]

The Magna Carta was imposed on King John by the Barons, as I understand it—the Barons being Members of this noble House. The House did not exist in that form, but it was imposed by the Lords and the Barons. The House of Commons passed the Bill of Rights 350 years ago and imposed it on the sovereign, guaranteeing our rights to free elections, no taxes without parliamentary approval and free speech. The Bill of Rights passed 350 years ago by this Parliament formed the basis of the United States Bill of Rights and Bills of rights of other countries around the world.

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

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

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

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

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

My Lords—

--- Later in debate ---

[Baroness Deech]

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

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

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

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

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

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

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

laws.

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

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

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

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

[Lord Keen of Elie]

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

[Baroness Lister of Burtersett]

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

[Lord Keen of Elie]

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

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

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

[Lord Pannick]

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

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

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

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

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

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

[Lord Beith (LD)]

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

[Lord Keen of Elie]

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

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

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

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

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

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

[Lord Adonis]

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

[Lord Keen of Elie]

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

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

[Lord Goldsmith]

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

Prisons

Lord Keen of Elie Excerpts

Thursday 22nd February 2018 Lords Chamber

[The Lord Bishop of Gloucester]

To ask Her Majesty’s Government what is their vision for the long-term future of the prison system.

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

My Lords, we shall seek to maintain a prison system that is sufficient for public protection and will provide opportunity for the rehabilitation of offenders. Where it is necessary for offenders to be deprived of their liberty, their detention should be decent and safe.

[The Lord Bishop of Gloucester]

My Lords, in 2015, the Justice Committee of the other place concluded that funding for women’s centres,

“appears to be a recurring problem”.

Ten years after the report of the noble Baroness, Lady Corston, can the Minister assure me that secure, long-term funding for women’s centres is now a high priority?

[Lord Keen of Elie]

Clearly, the matter of female offenders is one of the priorities that we are addressing. Indeed, we can note that the number of female offenders has dropped to the point where it is now in the region of 3,936 out of a total population of about 86,000. We are of course concerned with ensuring that there is funding in respect of female prisoners and offenders as they leave the prison system.

[Baroness Corston (Lab)]

My Lords, the numbers to which the noble and learned Lord refers have recently gone up. It is 12 years since I was requested by the previous Government to conduct a review of deaths of women in the criminal justice system, because of some very high numbers in the previous two years, and the numbers subsequently plummeted considerably. But, last year, we had exactly the same high shocking numbers of women who took their own lives in prison. Why?

[Lord Keen of Elie]

My Lords, any death in custody is a tragedy. What I can say is that, in the period of 12 months to September 2017, the number of self-inflicted deaths in the prison system dropped by about 30%.

[Lord Kirkhope of Harrogate (Con)]

My Lords, speaking as a former Mental Health Act commissioner, I am deeply disturbed by the high incidence of mental illness in our prison population. I would be very grateful if my noble and learned friend could inform us of how much attention has been given to this by the Government, working not only through his department but with other agencies to address what I believe to be quite a serious issue.

[Lord Keen of Elie]

My noble friend is quite right to highlight such a serious issue. There is a very large proportion of prisoners with mental health issues within the system. We are working with the Department of Health and NHS England to develop a new health and justice protocol that should ensure timely access to mental health and substance misuse services. In addition, we have been providing grant funding of £500,000 a year to the Samaritans for the last two years in order that they can support their Listener Scheme for those who require it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I believe that this House collectively shares a vision for our prisons to be not only secure, but clean, well maintained, humane, uncrowded, well staffed, safe places of education, training and purposeful activity, effective in addressing mental health and addiction issues and committed to rehabilitation and turning lives around—in short: civilising and civilised. Do the Government share this vision? If so, will they greatly increase investment now to realise it, incidentally reducing the estimated £13 billion annual cost of reoffending?

[Lord Keen of Elie]

My Lords, we, of course, have a vision of a prison system that is decent and safe for all those who have to be secured within it. We are proceeding with a programme of capital expenditure to replace Victorian and older prisons with prison accommodation more suited to present requirements. We have increased the number of prison officers within the prison estate in the last few years to the point where, up to December 2017, there were 19,925 prison officers, an increase of about 1,500 from the previous year. Of course we have aspirations for the prison system but we have to be realistic about those.

[Lord Laming (CB)]

My Lords, does the Minister agree that three things should be done immediately? First, we need to bear down on the avoidable use of prison by putting in place a robust system of non-custodial sentences. Secondly, we need to ensure that, particularly for short-term offenders, the regime is purposeful rather than just locking them up for hours? Thirdly, we need to ensure that the resettlement arrangements have substance.

[Lord Keen of Elie]

My Lords, I agree with all three of those points. Clearly, we want to develop reliable non-custodial sentences to maintain alternatives to custody where we can do that. We are seeking to develop our education programme and are developing further resettlement programmes. We recognise that offenders who secure employment on release from prison have a lower rate of reoffending.

[Lord Blunkett (Lab)]

My Lords, one of the most disturbing experiences I had as Home Secretary—at that time, the post incorporated the responsibilities of the Justice Department—was visiting Holloway prison and hearing the women speak about their fear of being released because of what might happen to them if they returned to the circumstances that had led to their incarceration in the first place. In his first Answer, the Minister mentioned the importance of what happens when women prisoners are released. What further steps does he think the Government might be able to take to ensure that people avoid becoming mules or being abused in circumstances that they experienced before they were sent to prison?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we are concerned to ensure that suitable accommodation is available for all prisoners, particularly female prisoners, upon release. Indeed, under the Homelessness Reduction Act 2017, prisons and probation providers are subject to a new duty to refer to local housing authorities someone who might be at risk in those circumstances.

Prisons

Lord Keen of Elie Excerpts

Thursday 8th February 2018 Lords Chamber

[Lord Lee of Trafford]

To ask Her Majesty’s Government what assessment they have made of the size of the prison population and conditions within prisons.

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

My Lords, on Friday 2 February the prison population in England and Wales was 84,511. Work is under way to modernise the prison estate, closing some of the older prisons and creating in their place high-quality rehabilitative establishments.

[Lord Lee of Trafford (LD)]

My Lords, 75 of the 119 prisons in England and Wales have populations in excess of the certified normal accommodation standard. The latest figures show a 12% rise in both assaults and self-injury in prisons. The chief executive of the Howard League tells me that, in 30 years in the sector, she has never known conditions to be so bad. When is this Brexit-paralysed Government going to treat prisons and prison reform as a national priority? How bad does it have to get? Will the noble Earl tell us when he last visited a prison to see conditions for himself?

[Lord Keen of Elie]

The conferment of a hereditary title is welcomed. Mrs Keen will be very pleased.

This is of course a serious issue. The demands on our prisons are a long-term issue, not a short-term problem, and we intend to address it with a programme of new prisons. Perhaps I may say that the question of capacity in our prisons has been with us for well over 15 years: indeed, we are not quite at the same sort of ceiling of use as we were even 10 years ago. As regards crowding levels, I regret to say that, since 2004, they have remained persistently at about the same level on a measure in percentage terms of between 24% and 25%—but, as I say, we are seeking to address these issues with our programme of new establishments.

[Lord Beecham (Lab)]

My Lords, are the Government content that we have the fifth-highest incarceration rate in the EU—exceeded only by Poland, Hungary, the Czech Republic and Slovakia? If not, what do they propose to do about it?

--- Later in debate ---

[Lord Keen of Elie]

The Government are not content with such a situation and we are addressing more widely the issue of how and when we can develop non-custodial sentences to a greater extent. One of the pressures on the existing prison population has been the development of sentencing with regard to historic sex abuse, where long-term sentences have been imposed on a large number of people. That has put further pressure on the prison population.

[Lord Bird (CB)]

Is the noble and learned Lord aware that the National Careers Service has been doing sterling work in our prisons to educate and prepare both young and older people leaving prison? The contract for this work is going to be terminated on 1 April and there does not seem to be any remedy in place. I would also like the Minister of State to reply to the letter from the Prisoner Learning Alliance, which has still not been answered, asking what will be done after 1 April for those people who are trying to get something out of prison so that they can leave prison with something.

[Lord Keen of Elie]

My Lords, the NCS is due to expire on 31 March 2018 and will do so on that day. There would have been an option to extend it for a further period of six months, but consideration of the variable delivery of services, and of in-custody services in particular, led to a determination that the contract should not be continued. Alternative means are now being considered.

[Earl Attlee (Con)]

My Lords, I understand that the Sentencing Guidelines Council takes no account of the prison population. What would happen if we changed the rules so that the council did take account of the population and had a duty to make sure that we do not exceed the certified normal accommodation of the prison system?

[Lord Keen of Elie]

My Lords, we have not exceeded the certified capacity of the prison population, even over the last 20 years. We came very close in 2007, at which time the Labour Government had to introduce an executive licensing system to take pressure off the prison population—but at present we remain below capacity.

[The Lord Bishop of St Albans]

My Lords, research by the Ministry of Justice shows that women’s centres have a statistically significant effect on decreasing reoffending rates, are substantially cheaper than keeping women in custody and often allow families to stay together. Will the Minister use his department’s evidence to invest in women’s centres that treat women holistically as the best way forward for many women?

[Lord Keen of Elie]

The right reverend Prelate makes a very good point. We will shortly be setting out our strategy for female offenders. At present there are about 3,900 female offenders in custody. The Government are investing about £1 million between 2016 and 2020 to support local areas to respond to the needs of female offenders and to adopt a multiagency approach to their particular issues and problems.

[Lord Richard (Lab)]

My Lords, when the noble and learned Lord answered the Question he said that, of the 84,000 people in prison, a large number were due to historical abuse convictions. Can he tell us how many of the 84,000 are due to historical abuse?

[Lord Keen of Elie]

No, it is not possible for me to give that figure. However, it is an indication of the pressures that have developed on the prison population.

[Lord Woolf (CB)]

My Lords, the Minister accepts that there are great problems within the Prison Service. They seem to correlate with the result we now have of constant changes in the Lord Chancellor or Minister of Justice—I say that seeing the noble and learned Lord, Lord Irvine, in his place—and the fact that Ministers have to learn about prisons, which is not an easy task. So we get a situation where good reforms are overlooked and mistaken reforms are implemented. Does he think that there is a solution to this?

[Lord Keen of Elie]

Speaking from a personal perspective, I hope that there is a solution in the form of some consistency and constancy of ministerial appointments in particular departments—but I quite understand the noble and learned Lord’s concern. Within the Ministry of Justice we are pursuing a consistent policy with regard to prison improvement.

Asylum Seekers: Legal Advice

Lord Keen of Elie Excerpts

Monday 5th February 2018 Lords Chamber

[Lord Roberts of Llandudno]

To ask Her Majesty’s Government whether they intend to ensure that every failed asylum seeker, and anyone facing removal from the United Kingdom for whatever reason, has access to adequate legal advice.

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

My Lords, legal aid is available for individuals faced with deportation where they are claiming asylum or challenging their detention. The Government have commenced the post-implementation review of legal aid, which will include the scope of legal aid for immigration and asylum cases.

[Lord Roberts of Llandudno (LD)]

My Lords, the Minister will be aware that many asylum seekers are unable to access legal advice, for different reasons. Some are penniless and others just do not know the procedures. The result is that many of the decisions made by the Home Office are unsound and reversed on appeal. In 2005, 13,000 appeals were allowed. In 2010, 35,000 were allowed and, in 2015, 17,000 were allowed. Therefore, in 10 years 250,000 appeals were allowed—a quarter of a million wrong decisions by the Home Office. Will the Minister please tell me what he is doing to remedy that situation so that we have a procedure that is fair and equable?

[Lord Keen of Elie]

My Lords, all persons detained in immigration removal centres now have access to a duty solicitor and therefore have access to legal advice.

[Lord Beecham (Lab)]

My Lords, it should be axiomatic that legal assistance is available to people facing removal and the Minister has made it clear that that should be the case. However, surely the underlying problem is the shameful record of the Home Office in this area. We read regularly that people who have been living in this country for decades, often working and having led a successful life here, are now being ordered to depart. Will the Government review the performance of the Home Office and its policies in this very sensitive area?

[Lord Keen of Elie]

My Lords, the period for which a person has remained illegally in this country should not be and is not a determinant of their right to remain here. It is necessary to apply the relevant law both to the issue of asylum seekers and those who arrive here unlawfully, not even seeking asylum.

[Lord Thomas of Gresford (LD)]

My Lords, a Bar Council report published last November found that at any one time more than 3,000 people, mostly failed asylum seekers, are held in administrative detention without being convicted of a crime, at a cost of £34,000 each. More than half are ultimately released into the community when their appeals succeed. Last Friday, in the case of VC, an asylum seeker from Nigeria with mental problems, the Court of Appeal slammed the Home Office for misinterpreting its own policy and awarded damages. Will the Minister review the means and merits test applied by the Legal Aid Agency, which academic research shows operates to exclude detainees from legal aid by,

“seizing upon the tiniest thing”,

to declare their applications ineligible?

[Lord Keen of Elie]

My Lords, the Legal Aid Agency is of course independent of Government for very proper and good reasons. The application of LASPO—the legal aid Act—is the subject of internal review at present following an announcement by the then Lord Chancellor in October last year.

[The Lord Bishop of St Albans]

My Lords, research by the Children’s Society shows that unaccompanied and separated children are particularly vulnerable. Only 12 grants for exceptional case funding were made in 2015-16, fewer than 1% of the expected number of cases under the previous system. Hundreds of children are being left without a legal safety net. Can the Minister confirm that the situation of these children will be specifically considered within the review of the Legal Aid, Sentencing and Punishment of Offenders Act?

[Lord Keen of Elie]

My Lords, current figures show that 103 children were put into detention in immigration-related matters in 2016, of which 42 were under 12. Some of those may have been unaccompanied but, under the policy of the 2014 Act, unaccompanied children should not actually go into immigration removal centres; they should be held pending removal decisions. With regard to exceptional case funding, the figures for the first two quarters of 2017 indicate that the success rate for immigration-related applications was 73%. Some 652 applications were made during that period.

[Lord Kirkhope of Harrogate (Con)]

My Lords, we should remember the United Nations convention, which originally set out the criterion for granting asylum: to people in great need of protection. Does my noble and learned friend agree that it is terribly important for us to restate that, and to make sure that asylum is not used as a vehicle for immigration rather than giving the protection that the most extreme cases require?

[Lord Keen of Elie]

My Lords, it is clearly in the interests of genuine asylum seekers that the system for seeking asylum as permitted under the UN convention should not be abused and should not be seen to be abused.

[Lord Bassam of Brighton (Lab)]

My Lords, according to an Amnesty report published in 2017, over 2,000 young people seeking refuge in the UK were deported to Afghanistan between 2007 and 2015, the majority of them since the legal aid cuts were introduced. Does the Minister agree with Amnesty that the UK is in breach of its international obligations and law, and if so what steps do the Government intend to take to put this right?

[Lord Keen of Elie]

My Lords, we do not agree that we are in breach of our international law obligations, nor is it obvious that there is a connection between the figures given by the noble Lord and the availability of legal aid.

Prisons: Careers Guidance

Lord Keen of Elie Excerpts

Wednesday 31st January 2018 Lords Chamber

[Lord Beecham]

To ask Her Majesty’s Government why they have cancelled the contract of the National Careers Service to provide careers guidance in prisons.

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

My Lords, the custodial element of the National Careers Service contract has not been cancelled; it will reach its expiry date on 31 March 2018. We are reviewing options for alternative provision as part of wider employment services. We are committed to providing training and advice to deliver effective rehabilitation for the needs of offenders.

[Lord Beecham (Lab)]

My Lords, job coaches, who are likely to replace the present people who deal with prisoners, are not people who visit just before release. Others coming into this position will not provide as good a service as the career advisers, who work with prisoners over a considerable time. Can the Minister say what consultations have taken place on this decision and whether the results will be published in due course? Why have the Government refused to provide information as to the likely number of advisers who will no longer be employed?

[Lord Keen of Elie]

My Lords, the contract for the in-custody National Careers Service element could have been extended by a further period of six months maximum from 31 March 2018. A decision was made not to extend it because an internal review of the service being provided indicated that custody contract performance showed significant inconsistencies of service between institutions. As regards its replacement going forward, I note, for example, that community rehabilitation companies already work with every prisoner 12 weeks prior to release to ensure a personalised plan with respect to employment, and Department for Work and Pensions prison work coaches also work in this field. Indeed, it has been noted, particularly in 2016 by Dame Sally Coates in her review of prison education, that there is overlap and duplication within the current arrangements for supporting prisoners.

[Lord Dholakia (LD)]

My Lords, I declare an interest as in the register. A number of organisations provide services which assist in the rehabilitation of offenders. Does the Minister agree that to remove the National Careers Service will add to the overcrowding problem, thus increasing reoffending rates, which are now at as much as 70% in young offender institutions?

[Lord Keen of Elie]

My Lords, we do not consider that this will contribute to reoffending rates. One of the issues we wish to address with regard to future education contracts is the development of greater autonomy and governor empowerment, which will lead to local commissioning of these services and which we believe will lead to an improvement in them.

[Lord Ramsbotham (CB)]

My Lords, will the internal review that the Minister has just mentioned include looking at organisations which offer the ability to search for jobs online? There is an organisation called Prosper 4, which at the moment has 3,000 jobs on offer to ex-prisoners but only 200 prisoner takers, because the Ministry of Justice and HMPPS seem to refuse to use online job-seeking.

[Lord Keen of Elie]

My Lords, perhaps I should clarify. I referred to an internal review that had been carried out to determine the standard of service being provided under the National Careers Service in-custody contract, and it was that which led to the decision to let the contract terminate at its natural point in March 2018. On the provision of alternative services, and indeed online services, we are of course open to submissions about such a matter, and it will be an aspect of the governor empowerment proposals that we are taking forward.

[Lord Watts (Lab)]

My Lords, can the Government indicate how many people they believe who were released from prison will be in full-time employment 12 months after release?

[Lord Keen of Elie]

I do not have those figures immediately to hand, but I am content to write to the noble Lord, outlining such figures as we have in that regard, and I will place a copy of the letter in the Library.

[Lord Faulks (Con)]

Would the Minister agree with me that one of the encouraging features about jobs and careers for prisoners is the number of times employers from the private sector engage prisoners, while they are still in prison, who turn out to be satisfactory employees who then continue that employment when they leave?

[Lord Keen of Elie]

My Lords, in response to the question from my noble friend, I agree that there have been notable successes in this area, and we should appreciate the work done by some particular employers in this regard. There is one in particular where present indications are that something like 10% of their workforce are former inmates. If we can encourage other employers to take this step forward, we can help to reduce recidivism in the prison population.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, does the Minister agree that one of the biggest barriers to employment is poor literacy skills? Can he say how many people going into prison are functionally illiterate, and how many fewer are not when they come out?

[Lord Keen of Elie]

My Lords, it is unfortunate but true that a very large proportion of those going into prison suffer mental health problems or literacy issues. We attempt to address those during their period in prison. Some improvement is achieved; it is not as great, perhaps, as we would hope, but within our prisons there is a difficult cohort as far as education and literacy are concerned.

Crown Prosecution Service: Disclosure Procedures

Lord Keen of Elie Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Morris of Aberavon]

To ask Her Majesty’s Government whether they intend to set up an independent inquiry into the role of the Crown Prosecution Service and its relationship with police authorities in respect of disclosure procedures in criminal cases.

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

My Lords, following a joint inspectorate report last year, the Attorney-General launched a review of disclosure procedures. This will report in the summer. Last week, the National Police Chiefs’ Council, the College of Policing and the CPS published a joint action plan for disclosure improvement. The House of Commons Justice Committee has now announced an inquiry into disclosure. We have no present intention to institute an additional inquiry.

[Lord Morris of Aberavon (Lab)]

My Lords, I welcome what is being done belatedly, but confidence in the criminal legal system in the Crown courts has been seeping away almost daily. Will the action proposed apply also to the magistrates’ court, where non-proceeding seems to be the norm? Since the DPP, who has made some very bold statements, is obviously struggling with the police, with their limited resources, to provide material for disclosure, will the Attorney-General join the Home Secretary in studying what was done in 1998? There was a failure to prosecute deaths in custody cases, so I appointed a senior ex-circuit judge to do an independent review, and he delivered a damning report in two or three months.

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

[Lord Thomas of Gresford (LD)]

Does the Minister not agree that it would be quite disproportionate for the victim to be required to disclose all her emails and electronic messaging to her attacker and his lawyers to trawl through at considerable public expense? Will the Minister not pursue the suggestion I made in our debate a fortnight ago that there should be a protocol whereby a defendant is required to give key words, such as his name, his nickname, places, people and events, to the prosecution for it to carry out such an investigation and to disclose whatever material he has suggested is produced?

[Lord Keen of Elie]

My Lords, I certainly agree with the indication that it would be disproportionate for a victim or complainer to have to disclose the entirety of their social media communications. It would be intrusive and inappropriate, and would impact upon the willingness of complainers to come forward in particular circumstances, so there has to be a balance. It would also raise very real data protection issues, so we have to take account of that. As regards a protocol, we are reviewing protocols in the context of disclosure, and I noted what the noble Lord said about a keyword search.

[Lord Mackay of Clashfern (Con)]

My Lords, is it feasible for the police to ask the complainer whether they have commented on the relationship in question in any media? I do not mean that they should give any detail, but at least it would alert the police as to whether it was worth looking at. Secondly, it is over 32 years since I had responsibility for these matters in Scotland, but I wonder whether there is any suggestion that this problem exists there.

[Lord Keen of Elie]

I am obliged to my noble and learned friend for his observations. On the police inquiries, as I understand it there is no reason why the police should not make appropriate inquiries of a complainer with respect to her social media and other communications that might be relevant to a particular complaint. In addition, the defence have to submit a schedule outlining their own case, in which they will have the opportunity to identify from the police schedule of material that has been recovered that which should be disclosed for the purposes of trial. On whether a similar issue has arisen in Scotland, disclosure is an issue in all jurisdictions; it is a question of how it is handled. Here we are concerned with the handling issue, not a resource issue.

[Lord Blair of Boughton (CB)]

My Lords, I could not disagree more with the Minister. We are, quite simply, dealing with a resource issue. The law on disclosure is as clear as daylight, but it was written before iPhones and social media came into existence. Does the Minister agree that whatever guidance is issued to the police and their forensic IT investigators, there has to be some concern about whether they have the resources to do this in cases of rape when they also have cases of terrorism and organised crime to deal with?

[Lord Keen of Elie]

My Lords, clearly the development of digital media has increased the demands made on both the police and the prosecution service in the investigation of crime. Indeed, in their most recent report, National Disclosure Improvement Plan, the National Police Chiefs’ Council, the College of Policing and the Crown Prosecution Service indicated that they will develop a joint protocol by March 2018 for the examination of digital media.

[Baroness Chakrabarti (Lab)]

My Lords, on the one hand we have urgent crisis reviews of pending prosecutions for fear of potential non-disclosure and unsafe trials and, on the other hand, we have various women’s groups telling us that the existing law designed to protect women from degrading questioning about their sexual histories is not being applied, and that causes fear as well. To add insult to injury, a notorious sex offender will be released on parole without rhyme or reason and without a voice for the victims of crime. Will the Minister please agree that it is time for the Government to give urgent attention, if not resources, to restoring faith, trust and confidence in our criminal justice system?

[Lord Keen of Elie]

My Lords, what is necessary is that a responsible Government should not arm wave but, instead, respect the rule of law.

Prisons: Action Plans and Special Measures

Lord Keen of Elie Excerpts

Wednesday 24th January 2018 Lords Chamber

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

My Lords, all prisons are required to develop comprehensive action plans following Her Majesty’s Inspectorate of Prisons’ inspections. Special measures is a separate internal performance and assurance process for identifying, managing and improving underperforming prisons through agreed and time-bound performance improvement plans. There are currently 10 prisons subject to special measure arrangements.

[Lord Ramsbotham (CB)]

My Lords, I thank the Minister for that very disturbing Answer. I have two further questions. First, in view of the dreadful situation that the Minister has outlined—the chief executive of the Prison and Probation Service has blamed it on his budget being cut by 40% since 2010, despite the increase in the numbers of prisoners—the dropping of the prisons part of the Prisons and Courts Bill and the recent appointment of the fourth Justice Secretary and third Prisons Minister since the 2015 election, how high does prison reform feature in the Prime Minister’s list of priorities?

Secondly, when the noble Lord, Lord Beecham, asked a Question about Liverpool prison before Christmas, I asked the Minister who in Prison Service headquarters was responsible and accountable for the prison. Understandably, he refused to name names. I now ask the question that I have been asking since 1995: is there anyone in Prison Service headquarters who is responsible for any prison or group of prisons, with the exception of high-security prisons, to whom governors who have either special measures or action plans can go to for advice and help?

[Lord Keen of Elie]

Clearly, our prisons remain a priority for this Government. There have been challenging issues, which we need to address and we will address. As regards special measures, when prisons go into special measures, they are provided with central support, which can potentially cover a number of areas, including expert advice, provision—in some instances—of further capital, and direction to the governor and staff of the individual prison.

[Lord Beecham (Lab)]

My Lords, one of the most disturbing features of the crisis in the Prison Service, highlighted at HMP Liverpool, has been shockingly inadequate healthcare. What discussions have taken place between the Ministry of Justice and the Department of Health to improve this situation? Will the Government encourage local authorities, which have responsibility for scrutinising health services, to exercise that function in relation to the provision of healthcare within custodial institutions in their area? I refer to my interest as a member of Newcastle City Council’s Health Scrutiny Committee.

[Lord Keen of Elie]

My Lords, the provision of healthcare within prisons is generally carried out by way of partnership between the prison and the health service. It is on that basis that it is continued. There are ongoing issues over the review of such partnerships.

[Viscount Hailsham (Con)]

My Lords, while endorsing the remarks made by the noble Lord, Lord Ramsbotham, may I suggest that the Ministry of Justice formulates its own action plan to address the continuing incarceration of prisoners held on IPP? Part of that action plan should include releasing those prisoners who have served their minimum term, unless there is some overarching concern about public safety.

[Lord Keen of Elie]

I am obliged to my noble friend. The matter of IPP prisoners is under consideration by the Ministry at the present time. It has of course been highlighted by the recent case of Worboys, which should not be seen, I would suggest, as an indication that we have dropped this matter. We are concerned with the issue of IPP prisoners.

[Lord Lee of Trafford (LD)]

My Lords, all parliamentarians should be sent a copy of the chief inspector’s devastating report on HM Prison Liverpool, showing that half the prisoners were locked in cells during the working day and 37% were drug-positive. The prison had hundreds of broken windows, with cockroach infestation and piles of rubbish, and over 2,000 maintenance tasks were outstanding. How many local, regional and national managers have been dismissed following this shocking indictment?

[Lord Keen of Elie]

My Lords, the conditions the inspectors found at Liverpool prison were unacceptable. Effective measures should have been taken to deal with the issues at a much earlier stage. A full review of all cell accommodation is under way. A programme of window replacement has been approved and in the region of £100,000 worth of toilets and sinks have been ordered for installation. The governor, deputy governor and the director of health services of Liverpool prison have been replaced. We are taking steps to address the situation, but I do not seek to suggest that it should not have been done earlier.

[Baroness Corston (Lab)]

My Lords, during the coalition and up to 2016, 7,000 full-time prison officer posts were abolished. As a result of my freedom of information request, the Government have revealed that the cost of riots since then—due, no doubt, to inadequate staffing—runs to £9,363,964. The contract was with Carillion. Would it not have been better to have kept those prison staff on?

[Lord Keen of Elie]

My Lords, we are halfway to the target of recruiting 2,500 extra prison officers. Reference is made to the past. We, as a Government, learn from the past but we plan for the future.

[The Lord Bishop of Chester]

My Lords, bishops go into prison more often than most Members of your Lordships’ House. There are two prisons in my diocese. The Liverpool prison report is an absolute scandal, so far as I can judge. However, does the Minister agree that many prisons are functioning rather well in the circumstances they face and that there is a good deal that can be celebrated alongside the horror stories, which are indeed dreadful?

[Lord Keen of Elie]

I accept that there have been horror stories and we cannot but be concerned by that. As I indicated, 10 prisons are subject to special measures and receive support but others are functioning effectively. We are taking urgent steps to improve the prison estate.

Sky-Fox Update

Lord Keen of Elie Excerpts

Tuesday 23rd January 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 Matt Hancock, the Secretary of State for DCMS. The Statement is as follows:

“Mr Speaker, I am here in my new capacity as the quasi-judicial decision-maker in relation to the proposed merger between 21st Century Fox and Sky Plc to update the House regarding the CMA’s interim report that it has issued today. The decision-making role is one that my right honourable friend the Member for Staffordshire Moorlands discharged, having met her commitment—given many times on the Floor of this House—to the greatest possible transparency and openness the process allows. And while I come to this fresh, I intend to follow the process of being as open as possible while respecting the quasi-judicial nature of the decision.

As this House well knows, after the proposed acquisition was formally notified to the competition authorities last year, my right honourable friend the Member for Staffordshire Moorlands issued an intervention notice on media public interest grounds; namely, of media plurality and genuine commitment to broadcasting standards. This triggered a phase 1 investigation of the merger, requiring Ofcom to report on the specified public interest grounds and the CMA on jurisdiction. Having received advice from Ofcom and the CMA, in September she referred the proposed Sky-Fox merger to the CMA for a phase 2 investigation on both grounds.

The original statutory deadline for the final report was 6 March, but the CMA has today confirmed that this will be extended by a further eight weeks and that the revised deadline is 1 May. Once I have received that final report, I must come to a decision on whether, taking into account the specified public interest considerations of media plurality and genuine commitment to broadcasting standards, the merger operates or may be expected to operate against the public interest. Following receipt of the final report, I will have 30 working days in which to publish my decision on the merger, so if I receive the CMA’s report on 1 May that would be 14 June.

To be clear, the publication today is the CMA’s provisional findings. I have placed a copy in the House Library. With regards to the need for a genuine commitment to broadcasting standards, the CMA provisionally finds that the merger is not expected to operate against the public interest. On media plurality grounds, the CMA’s provisional finding is that the merger may be against the public interest. It cites concerns that the transaction could reduce the independence of Sky News and would reduce the diversity of viewpoints available to, and consumed by, the public. It also raised concerns that the Murdoch Family Trust would have increased influence over public opinion and the political agenda.

The CMA has identified three remedy approaches and seeks views from interested parties on them. These remedy approaches are: first, to prohibit the transaction; secondly, to undertake structural remedies either to recommend the spin-off of Sky News into a new company, or to recommend the divestiture of Sky News; and thirdly, behavioural remedies that could, for example, include enhanced requirements around the editorial independence of Sky News.

The CMA also recognises that the proposed acquisition of Fox by Disney could address concerns set out in the provisional findings. However, the uncertainty about whether, when, or how that transaction will complete means the CMA has also set out potential approaches, which include introducing remedies which would fall away subject to the Disney-Fox transaction completing.

The CMA has invited written representations on the provisional report’s findings and the potential remedy approaches with 21st Century Fox and Sky—as well as other interested parties—before producing a final report. As such, and given the quasi-judicial nature of this process, I hope the House will understand that I cannot comment substantively on the provisional report before us and I must wait for the final report before I comment. I am, however, aware of the keen interest of the House in this important matter. I know that right honourable and honourable Members will be closely scrutinising the CMA’s provisional findings and will have views on them.

The CMA’s investigation will continue over the coming weeks. It has set out the process for making representations on the remedy options outlined and on the provisional findings, with deadlines of 6 February and 13 February respectively. I feel sure that today’s debate will provide helpful context for that work.

What I am able to confirm today is that I will undertake to keep the House fully informed and follow the right and proper process, considering all the evidence carefully when the time comes to make my decision on receipt of the CMA’s final report. I commend this Statement to the House”.

My Lords, that concludes the Statement.

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[Lord McNally (LD)]

My Lords, I associate myself with the points made by the noble Lord, Lord Stevenson, about the second stage of Leveson and also the remedies that have already been put forward on media regulation. I welcome this Statement and the ongoing commitment of the Secretary of State to keep both Houses informed. I also appreciate the continuing interest of the Minister in this House, the noble and learned Lord, Lord Keen, in the matter. Like the noble Lord, Lord Stevenson, I would welcome a continuation of that informal dialogue. We welcome the interim findings concerning the public interest not being served in terms either of diversity or the influence of the Murdoch Family Trust.

On the commitment to broadcasting standards, I share the concern and puzzlement of the noble Lord, Lord Stevenson. I find it odd that in terms of commitment to broadcasting standards, the proposed merger does not operate against the public interest, echoing an earlier and very disappointing finding by Ofcom. In three continents over 60 years—in Australia, the UK and the USA—Mr Murdoch has been a major factor in lowering standards in both print and broadcast media. I am pleased that the Secretary of State is taking his time to think and consider. Frankly, he has been a little too eager to shoot from the hip in his first few days in office, so this more considered response is welcome.

I still believe that a healthy media ecology rests on a mantra of quality, diversity and choice. All three are threatened by an extension of Murdoch power. It is important to defend the integrity of Sky News, where the lack of 100% control has mitigated against the Murdoch effect. But the Secretary of State needs to go further and consider carefully how we protect our public service broadcast news on the BBC, ITV and Sky News. We need to review the protection of news sources in the light of the impact of new technologies. Here again, Ofcom needs to be proactive in reviewing and bringing advice on these matters.

We must also keep an eye on the implications of the Disney takeover of Fox. Does the Minister have a timetable or guesstimate about how soon the US authorities will come to their conclusions? For we must make sure that any remedies to protect the public interest are real and effective, not simply fig leaves to cover up a surrender to big media power. This is a welcome Statement but it is not the end of the matter. We need a robust Secretary of State to defend the public interest but, on that, I am afraid the jury is still out.

[Lord Keen of Elie]

I am obliged to the noble Lords for their observations. I note that the noble Lords, Lord Stevenson and Lord McNally, would both like to see a continuation of the informal all-party meetings that have taken place. I will of course pass that to the new Secretary of State for his consideration.

I cannot comment upon the terms of the provisional report and I know that Members of this House would not expect me to do so. The final decision will be a quasi-judicial decision for the Secretary of State, one which he will make in the light of the final report and in respect of which he will give reasons. With regard to the Fox-Disney transaction, both Disney and 21st Century Fox have stated clearly that the intention is for 21st Century Fox to continue with its bid of December 2016 before the Disney acquisition is completed. But I am not in a position, any more than any other of your Lordships, to determine when that final process will be completed. It will be subject to procedural issues in the United States of America, quite apart from anything else.

Non-Disclosure Provisions

Lord Keen of Elie Excerpts

Monday 22nd January 2018 Lords Chamber

[Baroness Stowell of Beeston]

To ask Her Majesty's Government whether they intend to review the legality of non-disclosure provisions in settlement agreements.

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

My Lords, non-disclosure provisions in settlement agreements are allowed by law and can have a legitimate purpose. They cannot prevent any disclosure that is required or protected by law. The Government have committed to look at the structures around non-disclosure agreements and the evidence that is coming forward about how they are being used.

[Baroness Stowell of Beeston (Con)]

My Lords, I am grateful to my noble and learned friend for his commitment to look at this complex area of the law. Although he is right that there are protections for certain kinds of disclosure, we still hear about powerful individuals and institutions using non-disclosure agreements—or “gagging orders”—to cover up wrongdoing or serious management failure. I have two questions for my noble and learned friend. As part of his review into this area, could he also look at the roles and responsibility of the lawyers involved in drawing up these agreements, especially when allegations of unlawful behaviour are made? Secondly, what are the Government doing to satisfy themselves that, in the public sector, taxpayers and licence fee payers are not paying for things to be covered up which they have a right to see exposed?

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes any non-disclosure provisions between any employer and employee unenforceable unless the employee has had independent legal advice. The position of the legal profession, to that extent, is monitored. ACAS has a statutory code and practical guidance on settlement agreements which make it clear that no settlement agreement can include clauses that attempt to prevent or restrict an individual from making a protected disclosure. That applies to the public sector as well as elsewhere.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the noble Baroness raises an important point, because it is wrong that confidentiality, or gagging, clauses in settlements should be used to conceal wrongdoing. But confidentiality clauses do play an important part in encouraging ADR—particularly mediation or arbitration—and in encouraging parties to settle cases rather than fight them in public, all of which we are keen to promote. Will the Government consider further how we might restrict the improper use of such clauses, particularly in employment and sexual cases, without undermining their legitimate use?

--- Later in debate ---

[Lord Keen of Elie]

The Government are conscious of the importance of confidentiality clauses, particularly between employers and departing employees. It may, for example, be important to protect confidential information material to a business. But we are equally concerned to ensure that the limitations are legitimate and that it is not possible to exploit such clauses in order to turn them into what are sometimes termed gagging clauses.

[Baroness Chakrabarti (Lab)]

My Lords, I think all of us, including the Minister, can agree that there are certain clear examples of cases where no court or tribunal should attempt to enforce one of these clauses, because it would be contrary to public policy. For example, the victim of a sex offence should be able to go to the police without anyone enforcing a clause against her. But it gets more complex beyond that. Does the Minister agree that if there are victims who are, de facto, chilled from coming forward, the Government have a role in clarifying and possibly legislating in this area?

[Lord Keen of Elie]

My Lords, the Government have committed to consider the report of the committee that is looking into this issue, and will then determine what further steps should be taken. We would prefer to react to the outcome of that report rather than anticipating it.

[Lord Faulks (Con)]

My Lords, my noble friend Lady Stowell referred to the problem with lawyers. This is a problem that has emerged particularly in Hollywood, where a very powerful industry, which unfortunately has been responsible for exploiting often young women in particular, has allowed them to obtain at least some form of legal advice, but there has nevertheless been a considerable inequality of bargaining power between the two. Does my noble friend not think that the Government ought to be looking at a presumption that unless there is equality of bargaining power, these sorts of agreements should be unenforceable?

[Lord Keen of Elie]

My Lords, I am not sure that the introduction of some form of legal presumption is necessary. Thanks to the Employment Rights Act 1996, if an employee is not given independent legal advice, any non-disclosure provision becomes unenforceable.