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

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

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

[Lord Keen of Elie]

My Lords, I of course am listening to the contributions made to the debate in Committee and will take account of the observations that have been made. I make no comment on the procedural issues that the noble Lord raised.

[Baroness McIntosh of Pickering]

My Lords, I thank my noble and learned friend for his full answer to the concerns that were raised. Perhaps I misunderstood his response, but I think that the thrust of the interventions of noble Lords—nearly to a man and a woman—was that it is inappropriate to seek to put into UK law by delegated secondary legislation a new treaty that the Minister and the Government seek to sign. The thrust of the remarks was that it should require primary legislation. Have I misunderstood my noble and learned friend on that point? Why are the Government resisting the usual procedure of agreeing to implement anything that has been agreed by the Government by way of international treaty through primary legislation?

[Lord Keen of Elie]

First, let me make it clear that I do not accept that it is an invariable constitutional practice that the implementation in domestic law of an international law treaty is undertaken by way of primary legislation only. Secondly, when it comes to the implementation of a treaty that has been entered into at the level of international law, the purpose of drawing it down into domestic law is either to accept it into domestic law or not to accept it into domestic law. There is no scope for amending the terms of the treaty that has already been entered into. Therefore, the use of the affirmative statutory instrument procedure is considered appropriate. It gives this House and the other place ample opportunity to debate whether they should draw down the treaty obligations into domestic law. There is, essentially, no real scope for amendment; therefore, we consider the affirmative procedure perfectly adequate for that purpose.

Brexit: Powers of EU-UK Joint Committee

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Wednesday 20th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, there are two obvious controls. First, Ministers or others will attend the joint committee with a mandate from Parliament. Secondly, pursuant to Section 25(2) of the Constitutional Reform and Governance Act 2010, a decision that constitutes an amendment to part of the treaty or replaces part of the treaty made by the joint committee would require ratification.

[Baroness McIntosh of Pickering (Con)]

My Lords, can my noble friend explain the current legal position on consultation on international agreements that have been reached with the Faroes, Norway and Iceland, which have carried over, particularly for the Scottish Government?

[Lord Keen of Elie]

Of course, international affairs are a matter for the United Kingdom Government. We do not undertake such matters without consultation with the devolved Administrations, where it has an impact on their interests. It is, however, simply a matter for the United Kingdom Government, not the Scottish Government.

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Tuesday 15th January 2019 Lords Chamber

[Lord Keen of Elie]

Yes, of course. I am obliged to the noble Lord for prompting me to go straight to that point. There are 680 European lawyers registered with the Solicitors Regulation Authority and up to 20 who are with the Bar Standards Board: far fewer in the latter case because, of course, most European lawyers who come to practise tend to find themselves practising in London’s large firms, rather than seeking to establish themselves as independent barristers at the Bar. I hope that that meets the noble Lord’s concern on that point.

[Baroness McIntosh of Pickering (Con)]

As my noble friend is aware, I worked in the other way: I qualified under Scots law and then went to practise in Brussels. Under the new arrangements, what will be the reciprocal rights of those who wish to do precisely what I did after we leave the European Union?

[Lord Keen of Elie]

In the event of us exiting without any deal, there will be no reciprocal rights—which was one reason why, as I indicated, these regulations are required. They are necessary in order that we can establish a position in which all third-party country lawyers will be on the same standing in the absence of a free trade agreement or other agreement with a third-party country. There will be no reciprocity—that will be a matter for the relevant EU country to consider—but clearly it is a matter that we would wish to address in future negotiations consequent on our exit from the European Union. This is dealing with the position in the United Kingdom in light of the existing regulatory regime under EU law. Clearly, and quite patently, you could not address the question of how the EU 27 are going to treat our lawyers going forward.

--- Later in debate ---

[Lord Keen of Elie]

It does not refer to the transitional period as proposed in the withdrawal agreement: it refers to a transitional period that will apply for the purposes of this particular instrument in order to ensure that there is no immediate cut-off for EU lawyers in the United Kingdom. It is for that particular purpose that this particular regulation allows that, and it is considered that that is allowable under the GATS regime as well—in other words, we are allowed a period of time to transition to a point where European lawyers registered in the United Kingdom come to find themselves in the same position as third-party country lawyers.

[Baroness McIntosh of Pickering]

I am sorry to belabour the point, but I am slightly confused about why we are being so nice and kind to EU lawyers—the non-British lawyers who are working here—and not seeking to protect the rights of British lawyers who are working in Brussels, Denmark, Sweden and other EU countries. Are we not trying to be reciprocal now?

[Lord Keen of Elie]

Clearly, over time we will address the ability of the United Kingdom to agree with the EU the possibility of reciprocal rights for United Kingdom lawyers in Europe, but it is not something that we can dictate by our legislation. What we can do, however, is facilitate the position of EU-registered lawyers who are already in the United Kingdom and contributing to the legal services in the United Kingdom so that they can be secure in the knowledge of what their position will be in the event that we exit without any agreed deal.

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[Lord Keen of Elie]

Yes, I am most obliged to the noble Lord. Registered foreign lawyers are those lawyers of third-party countries who are registered in the United Kingdom. We have lawyers from many jurisdictions—for example, the United States of America—who practise under their foreign lawyer qualification in the United Kingdom. As the noble Lord will appreciate, London is an international legal centre as well as an international finance centre. This instrument has no impact at all on those foreign lawyers but it aligns registered European lawyers with registered foreign lawyers for the reasons that I have indicated.

[Baroness McIntosh of Pickering]

By definition, this instrument is to be of a limited duration. Is it temporary or is it of unlimited duration? I understood my noble and learned friend to say in response to my questions that this could well be overtaken by events at such time as we have a negotiated withdrawal agreement. At what stage will the negotiations be expected to start to make sure that British-qualified EU lawyers practising in other member states will be aligned with those EU- qualified non-British lawyers who are practising in this country? I understood my noble and learned friend to say that we are going to have two categories of European-qualified lawyers as of 29 March. There will be those non-British EU-qualified lawyers who are qualified to practise in this country, who will continue after 29 March. But there will be those like me—clearly, I am non-practising now—who will not be able to practise in another EU country post 29 March. For the avoidance of doubt, for a newly qualified European lawyer coming through in this country, is it understood that our qualifications, whether as a Scottish advocate or solicitor or as an English barrister or solicitor, will be recognised in other EU countries as entitling that person to qualify in European law in those countries, or will they have to go through, for example, a Danish jurisdiction, an Irish jurisdiction or a Belgian jurisdiction should they wish to practise in that particular member state?

[Lord Keen of Elie]

My Lords, this is a permanent change in the law, which may be subject to defeasance in the event that we have a withdrawal agreement. It will then be rendered unnecessary. It applies to and is concerned with the position of registered European lawyers in the United Kingdom. It cannot make provision for United Kingdom lawyers in the EU 27 or EFTA countries. We have no competence to do that. It is our hope, however, that in due course, and following withdrawal, subject to the withdrawal agreement, we will in the course of negotiation be able to negotiate with the EU 27 the development of appropriate reciprocal recognition for lawyers going forward, but that is for the future. This is a permanent change in the law to address the prospect of our leaving on the 29 March 2019 without a withdrawal agreement.

[Baroness McIntosh of Pickering]

I am sorry to persist, but could my noble friend answer my second point? After 29 March, will the qualification of anybody who is newly qualified under United Kingdom jurisdiction be recognised to enable them to practise automatically in another EU country, or will they have to requalify in that country on 30 March?

[Lord Keen of Elie]

With great respect to the noble Baroness, we cannot legislate to ordain the EU 27 or any EFTA country to recognise the legal qualification of someone who has qualified in the United Kingdom. We simply cannot do that, so, after 29 March, in the absence of any withdrawal agreement and any negotiated arrangement with the EU 27, such people will have to do what any other third-party-country lawyer does, which is to go to the relevant jurisdiction and apply the host country’s provisions on registration and qualification. There is no doubt about that.

Rape Trials

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

They do not necessarily explain such a situation. However, in circumstances where the defence actually obtempers its obligation to provide a defence statement, it is possible to identify further areas of inquiry for the disclosure of material. For example, if the defence statement discloses that that there was a pre-existing relationship between a complainer and the defendant, it will be possible to make further inquiries to ensure that material that might otherwise have gone unnoticed is disclosed to the defence. Therefore these matters are connected.

[Baroness McIntosh of Pickering (Con)]

Will my noble and learned friend clarify his comments on social media and the extent to which, in cases where the prosecution has information that is available on social media, it is disclosed to the defence counsel?

[Lord Keen of Elie]

In circumstances where it has been possible to download material that involves communications either between a complainer and the accused or between the complainer and third parties, that material will be analysed and all relevant material will be taken and disclosed to the defence. Of course, it is not always possible to access this material. We now live in an environment of encryption and of WhatsApp and Instagram, where sometimes this material is simply not accessible.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Monday 19th March 2018 Lords Chamber

[Lord Keen of Elie]

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

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

[Baroness McIntosh of Pickering (Con)]

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

[Lord Keen of Elie]

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

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

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering]

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

[Baroness Ludford]

My Lords—

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

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

[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.

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[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.

Sky and 21st Century Fox: Proposed Merger

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Thursday 29th June 2017 Lords Chamber

[Lord Keen of Elie]

With respect to the noble Lord, I do not consider that in the present context and for present purposes it is appropriate to go into the corporate structure or the trust structure of the various bodies that ultimately own the organs of media and broadcasting in the United Kingdom. Certainly, I do not feel that at this stage it would be appropriate to address the question of their tax liabilities, whether they arise within the UK or elsewhere.

[Baroness McIntosh of Pickering (Con)]

My Lords, I took an initial interest in Ofcom when, as shadow Minister, I scrutinised the original Bill setting up Ofcom, and I commend its decision and its role in this regard. In its report, Ofcom states that it has identified,

“the risk of increased influence by members of the Murdoch family trust over the UK news agenda and the political process, with its unique presence on radio, television, in print and online”.

I commend the Statement that my noble and learned friend the Minister has repeated to the House. I understand that this is a preliminary decision and does not reflect the Secretary of State’s final decision, but could he elaborate a little on Sky’s increased concentration of power in its online presence were this sale to go ahead? In this digital age, the BBC has a very strong online presence, Sky News has a very strong online presence and newspapers accept that their online presence is going to increase rather than decrease in relation to the printed media. We have already seen one newspaper go online completely. Would my noble and learned friend care to comment on what the Secretary of State’s thinking will be with regard to a potential diminution of competition and an increased concentration of power in the hands of one family, were this sale to go ahead, and the impact that that would have on the online media?

[Lord Keen of Elie]

I am obliged to my noble friend. Clearly, at this stage, the Secretary of State has made only a “minded to” decision and it would not be appropriate for me to anticipate how she will then proceed in light of further representations between now and 14 July. Ofcom recognised the materiality of Sky and Fox’s presence online. Indeed, that is an increasing issue in the context of news media. Of course, an online presence can take a number of forms. It can be aggregation or it can be the establishment of an independent online body of news. Very often, when one is talking about online, one is talking about Facebook or other forms of media that are simply passing on news that is available offline as well. At this stage I cannot elaborate much further, except to notice that Ofcom took account of Sky’s presence online as well as its presence in terrestrial television broadcasting and newsprint.

Sky and 21st Century Fox: Proposed Merger

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Thursday 16th March 2017 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, does my noble and learned friend agree that one of the most worrying things about this link and takeover is the threat to the dominant position already enjoyed by Sky News, the Times, Sunday Times and Sun newspapers, as well as talkSPORT radio? This could impact on bidding for sports programmes, TV shows and movies, as well as eliminating potential competition in the news. I should declare an interest in that I spent six months as an intern—perhaps more glamorously called a stagiaire in French—in the European Commission’s directorate-general for competition. Does my noble and learned friend have the timetable for that investigation, which is ongoing, and the impact it will have on the Secretary of State’s decision?

[Lord Keen of Elie]

I am not going to make any comment that would touch upon the merits of the proposed merger but the European Commission will of course take forward its inquiry into the competition aspects of this merger. My understanding is that the timing of that will fall within the time limit for the present investigation at the instance of the Secretary of State.

21st Century Fox Takeover Bid for Sky: Timetable

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Tuesday 20th December 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. I am not sure of the legal definition of a gnat’s whisker and therefore am not in a position to comment on the scope of the Ofcom outcome and its application to James Murdoch in those particular circumstances. Nevertheless, in so far as there is a relevant question of public interest, that is a matter for Ofcom, which will no doubt proceed as it is bound to in terms of the 1990 Act.

[Baroness McIntosh of Pickering (Con)]

My Lords, would my noble and learned friend care to comment on the role of the EU competition rules in this regard, as the proposed merger will strengthen the dominant position enjoyed by Sky News in the UK, Ireland, Italy, Germany and Austria, so there will be a very clear role for the European Union competition department? I should declare an interest: I spent a stagiaire—an internship—in what was DGIV in 1978.

[Lord Keen of Elie]

I am obliged to my noble friend. It will be a matter for the parties to determine the appropriate competition processes that will apply to this merger, and it will be for the Commission and the CMA to confirm when a formal notification has been made. I am aware that the 2011 bid from News Corporation, involving the acquisition of Sky Deutschland and Sky Italia, was both considered and approved by the Commissioner in terms of competition provision.

Banks: Fraud

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Thursday 5th May 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. In 2015, 70% of fraud was stopped—70%. As regards the numbers, we have seen an increase in reported banking fraud, simply because this Government have instituted far better systems for identifying fraud and breaches of cybersecurity. With respect, it is not going up. The noble Lord observed that there was an increase in card fraud, but that is not the case. In fact, fraud in respect of credit cards reduced by 4% in the last reported years. Wider reporting of fraud is, as I say, a consequence of our having instituted far better systems for identifying breaches of cybersecurity. I simply remind the noble Lord that it is more than just the Joint Fraud Taskforce dealing with this. We have the national cybersecurity programme, a five-year strategy under which £90 million has already been expended on this; the National Cyber Security Centre; the Cyber Streetwise campaign for online security; Project Bloom for the task force on pension fraud; and the Insurance Fraud Taskforce. Indeed, the Chancellor has committed £1.9 billion to spend on cybersecurity.

[Baroness McIntosh of Pickering (Con)]

My Lords, will my noble and learned friend advise the House of the number of prosecutions? I, too, have been a victim—successfully, unfortunately, when £300 was taken from my bank card within the space of 20 minutes. Will my noble and learned friend explain how many prosecutions are taking place? If the current law is rigorous enough, surely it is for the police to prosecute successfully the perpetrators of this crime.

[Lord Keen of Elie]

I do not have figures for prosecutions for fraud because it covers a wide spectrum. I will, however, undertake to write to the noble Baroness with such figures as we have, covering in particular banking fraud. Beyond that, I would say that this is the responsibility not just of the police but of Ofcom and indeed of the communications regulator, both of which have powers to impose severe penalties for misuse of cyber and telephone access.

Cyclists: Road Traffic Laws

Debate between Lord Keen of Elie and Baroness McIntosh of Pickering

Monday 18th April 2016 Lords Chamber

[Lord Berkeley (Lab)]

My Lords—

[Baroness McIntosh of Pickering (Con)]

My Lords, what is the penalty for a breach of the Highway Code by way of either pavement cycling or a cyclist going through a red light?

[Lord Keen of Elie]

There are a variety of offences that may arise in respect of cycling, under both the Highways Act 1835—cycling on the footway—and the Road Traffic Act 1988. A number of steps can be taken, beginning with a warning, followed by a fixed penalty notice of £50, followed by prosecution for a summary offence, which itself would impose a maximum fine of £500. However, under the Road Traffic Act, there are also further, more serious offences such as dangerous cycling, which can attract a fine of up to £2,500.