Rule of Law: Law Officers

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I am not seeking to give a political justification for anything; I am providing a legal justification for saying that the UKIM Bill falls within the boundaries of international law, within the boundaries of our treaty obligations and within the boundaries of the rule of law.

[Lord Campbell of Pittenweem (LD)]

My Lords, when the Advocate-General supported the withdrawal agreement in this House, did he find it as ambiguous and problematical as the Prime Minister now claims? If so, why did he vote for it?

[Lord Keen of Elie (Con)]

My Lords, I was not concerned with either ambiguity or problems within the withdrawal agreement Bill; others may have taken a different view.

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, as regards the legal advice, I refer back to paragraph 7 of the Attorney-General’s letter, in which he said that the,

“Joint Instrument extend beyond mere interpretation of the Withdrawal Agreement and represent materially new legal obligations and commitments”.

To that extent, we have moved on. But of course, he also made absolutely clear that the legal risk that had been addressed in the context of whether there was a unilateral right to leave the backstop had not changed and that there was no internationally lawful means of exiting the protocol’s arrangements except by agreement. But context is everything.

On the second point, there appear ample grounds for supposing that, in taking this forward, we will arrive at a resolution of an issue that troubles lawyers but I suspect does not trouble politicians quite as much: whether or not the backstop is somehow a black or white outcome. It is not an outcome that is anticipated nor one that we believe we will have to address, and if we have to address it, we do not believe it will ever be permanent, and that for political reasons alone.

[Lord Campbell of Pittenweem (LD)]

My Lords, I wanted to ask the noble and learned Lord to name an alchemist who ever succeeded in his determination to turn lead into gold, but perhaps that is for another occasion. Since we are talking about risk, it is important to remember that one risk that featured very strongly in noble Lords’ consideration of these matters is the possibility that anything that seemed to have the effect of recreating a border between the north and south of Ireland was a risk we were not willing to take. One reason for that was the fragility, albeit that it is still in existence, of the Belfast agreement. I say with due respect to the noble and learned Lord, Lord Mackay of Clashfern, that when one is considering risk, this is not crossing the road: it is a risk that could have the effect of bringing to an end many years of fragile peace. In those circumstances, it is hardly surprisingly that people want to be pretty certain, before that risk is taken, that to do so is not likely to lead to an adverse outcome.

[Lord Keen of Elie]

With respect to the noble Lord, Lord Campbell of Pittenweem, I must say that I entirely disagree with his analysis. The whole point of the present withdrawal agreement and the Northern Ireland protocol is to ensure that we adhere not only to the terms but to the spirit of the Belfast agreement. That is why the backstop has been formulated in the manner in which it has. We will leave the backstop only when, or if, there is a need to put in place alternative structures that do not require a hard border between Northern Ireland and the Republic of Ireland. I reiterate my belief that we will never actually enter the backstop in the first place. We have that period up to December 2020 in which to address this issue and it is not beyond the wit of man or alchemist to resolve such an issue.

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

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Wednesday 27th February 2019 Lords Chamber

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

[Lord Campbell of Pittenweem]

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

[Lord Keen of Elie]

I did not say that at all.

[Lord Campbell of Pittenweem]

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

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


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

[Lord Keen of Elie]

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

Brexit: Legal Position of Withdrawal Agreement

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Monday 3rd December 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord, who draws on a great deal of experience where these matters are concerned. I entirely agree with his observation: it would render the law officers’ position almost impossible when advising government fully, candidly and without reservation, if it was felt that that advice was then to be put into the public domain—let alone put into the public domain when we were carrying on relevant negotiations such as those we are carrying on with the European Union.

[Lord Campbell of Pittenweem (LD)]

I regret to find myself in disagreement with the noble Lord, Lord Butler. I come back to the question of convention. No one can be in any doubt of the significance of the events that we are living through at the moment. Casting back in my memory, the only similar occasion I can think of is the decision to take military action against Saddam Hussein. On the eve of the debate in the House of Commons the noble and learned Lord, Lord Goldsmith, who I see in his place, answered a Written Question from—if my memory serves me right—the noble Baroness, Lady Ramsay of Cartvale, setting out the legal basis and justification for military action. Surely when the circumstances demand it, the convention can be dispensed with.

[Lord Keen of Elie]

With respect to the noble Lord, the circumstances in which the totality of the advice of the noble and learned Lord, Lord Goldsmith, came out were rather more complex than that, but let us address the immediate issue. What he was considering in that context was the lawfulness or unlawfulness of the action contemplated by the Government. That is not the position that pertains here.

Belhaj and Boudchar: Litigation Update

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Thursday 10th May 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord. It is not for me to comment upon a press release from the Crown Prosecution Service, which is, of course, an independent body concerned with the consideration of criminal complaints and cases. Therefore, I cannot add to the comments that were made in that press release.

On the matter of guidance, the current consolidated guidance is from 2010. That sets out the principles consistent with both domestic and international law governing the interviewing of detainees overseas and the passing and receiving of intelligence-related matters and information. At the moment, I am not able to give any indication as to when a review of that guidance will be completed, but it might be informed—apart from anything else—by the work of Parliament’s Intelligence and Security Committee, which is due to publish its detainee report in the near future. In light of that, we will give attention to the 2010 guidance.

[Lord Campbell of Pittenweem (LD)]

My Lords, I had forgotten that it was a Question asked by me in the other place that initially produced the Answer that no such rendition had taken place. At the time, there was great speculation that airfields other than the principal airfields in the United Kingdom were being used for that purpose. It might help the House if I were to point out that I was subsequently given a public apology by the successor as Foreign Secretary, Mr David Miliband. Even by the standards of the time, what happened in this case was quite extraordinary and unacceptable. The strength of these new arrangements—some of which arose out of recommendations made by the Intelligence and Security Committee, of which I subsequently became a member—will be to ensure that nothing of this kind ever happens again in any circumstances.

On a technical note, I understood the Advocate-General to say—I may have misheard him—that there was no admission of liability when this settlement was made. Having listened very carefully to the terms of the letter written by the Prime Minister, it seems to me that on any view, that might not be a judicial admission of liability but it is most certainly, in the minds of any who hear it, an admission by the Prime Minister that a great wrongdoing was created in this case.

[Lord Keen of Elie]

As I indicated, the conclusion of the mediation was, among other things, that there was no admission of liability. However, the noble Lord will recognise the concern that the Prime Minister and the Government felt over the events that led to the detention of Mr Belhaj and Mrs Boudchar. I hope that the Prime Minister’s clear apology will speak for itself.

Worboys Case and the Parole Board

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

I do not regard the position taken by my right honourable friend as inconsistent with the independence of the Parole Board. He took a view on the matter following the decision of the High Court, and he expressed that view to Professor Nick Hardwick, who tendered his resignation.

[Lord Campbell of Pittenweem (LD)]

My Lords, may I take the Advocate-General back to the question of legal aid? Had the legal aid scheme provided for assistance in cases of this kind, it would none the less have had to apply the test of reasonable prospects of success, or probable cause. Given that the Secretary of State received advice to the effect that there was no probable cause, that could well have resulted in the victims making an application for legal aid but still being turned down.

[Lord Keen of Elie]

That is of course potentially the case, although I would observe that the High Court’s decision eventually turned on a different point from the issue of rationality: the failure to take account of material information that should have been before the Parole Board. Beyond that, I would not seek to speculate as to the outcome of a legal aid application, but the point the noble Lord makes is entirely sound.

Queen’s Speech

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Wednesday 28th June 2017 Lords Chamber

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

My Lords, it is an honour, even at this hour, to be asked to speak in support of Her Majesty’s gracious Speech. I thank noble Lords for the many valuable contributions made in the debate this evening. Her Majesty the Queen underlined the core principles of the Government’s programme of legislation on, and their approach to, exiting the European Union in the gracious Speech:

“my Government’s priority is to secure the best possible deal as the country leaves the European Union. My Ministers are committed to working with Parliament, the devolved Administrations, business and others to build the widest possible consensus on the country’s future outside the European Union”.

My noble friend Lady Anelay spoke in the opening of this debate on the context and substance of this legislation as the centrepiece of the Government’s extensive legislative programme to support our exit from the EU. These issues have been discussed with clarity, eloquence and in detail not only today but on previous occasions. I will not seek to repeat all the points that have been raised, but I will summarise certain issues. First, the Government have made clear that we must respect the will of the British people expressed in the referendum last year: we will be leaving the European Union.

I have great admiration for the noble Lord, Lord Campbell of Pittenweem, particularly for his candour. He said in terms that a terrible mistake had been made and that we should simply not leave.

[Lord Campbell of Pittenweem]

I think that when the Minister consults Hansard, he will find that that is not what I said. I said that I remain convinced of the idea that the best interests of the United Kingdom are served by membership of the European Union. I did not characterise my position in the terms that he has suggested.

[Lord Keen of Elie]

I am content to consult Hansard on the point and I am not, at this hour, going to enter into a debate on what was noted and what was not noted in the noble Lord’s comments, but he made it perfectly clear that, notwithstanding the results of the referendum, he felt that the interests of the British people lay in remaining in the European Union.

As I say, the Government’s position is perfectly clear: we intend to respect the outcome of the referendum and, indeed, exit negotiations began in Brussels last week. We are of course working to secure a smooth exit from the EU, and one that protects the rights of EU citizens in the United Kingdom and British citizens in other EU countries, recognising our unique relationship with the other countries in the EU. We want to build a new, deep and special partnership between the United Kingdom and the European Union that takes in both economic and security co-operation. It should be underpinned by ambitious agreements on free trade and customs covering goods and services and seeking the greatest possible tariff-free and barrier-free trade. Of course, those negotiations will be complex and at times challenging, but the Government are confident that with hard work and good will on all sides we can reach an outcome that works for the European Union and all parts of this union—the United Kingdom.

We have listened to the EU and its leaders and we understand and respect the position that the four freedoms of the single market are indivisible and that there can be no cherry picking. Those four freedoms include the free movement of people. The noble Lord, Lord Adonis, referred to these four fundamental and indivisible freedoms as a false doctrine, but they are nothing of the sort. It is a statement of fact that the EU wishes to maintain, and will maintain, the indivisibility of those four freedoms in respect of capital, services, goods and people, and we have to respect that going forward.

The question before us now is how the Government’s plans, including the legislative programme outlined in Her Majesty’s gracious Speech, support the negotiations, ensure a smooth exit from the EU and prepare for the UK’s future outside the EU. The legislative agenda to prepare the UK for its new place in the world outside the European Union is extensive, but it is also necessary. The centrepiece of this legislative programme is the repeal Bill, which has three main effects. First, it ends the authority of EU law in the United Kingdom, transferring power back from Brussels to the United Kingdom. Secondly, it converts the body of EU law into domestic law to maximise certainty for individuals, businesses and consumers by converting EU law into domestic law. It will give Ministers, both here and in the devolved Administrations, the power to amend EU law as appropriate so that we have a functioning statute book on day one after exit. Thirdly, as well as maximising certainty and ensuring a smooth exit from the EU, the Bill will also support a future trade deal with the EU by ensuring that we start from a regulatory level playing field. The purpose of the legislation is clear and significant for the whole country: it is to ensure we have can have a smooth and orderly exit from the European Union.

I will not attempt to address each of the 64 contributions that have been made this evening. That would strain not only my recollection but noble Lords’ patience. However, with the leave of the House, I shall address a number of the contributions and bring together some of the common points that were raised. I begin with the observations of the noble Baroness, Lady Hayter, who spoke of the United Kingdom’s place in the world after Brexit, as if there was going to be a fundamental loss of both hard and soft power. With respect, we do not accept that proposition at all. I remind the noble Baroness that, among other things, the United Kingdom remains one of the few countries in NATO that meets its commitment to spend 2% of GDP on defence, it meets the United Nations standards with regard to overseas aid at 0.7% of GDP, and our standing in the world is measured by these rather than simply by membership of the Union itself.

The noble Baroness spoke of mutuality. That arises in a number of contexts. It is important to appreciate that what we are addressing here is a matter of mutual interest. Just as we have an interest in the enforcement for example of family law decisions within the European Union, so it has a mutual interest in the enforcement of its orders within the United Kingdom. Just as we have an interest in trading with the European Union, so it has a £300 billion interest in trading with the United Kingdom, whether within or without the single market, so mutuality lies at the heart of the negotiation that will be undertaken.

The noble Baroness spoke of the issue of mutual recognition in the context of things such as the European Medicines Agency. But, of course, we address the matter of mutual recognition with regard to such things as medicines and chemicals at an international level. So, for example, we have no difficulty with regard to our dealings with the US federal agencies; there is always an element of good will and recognition arising there.

The noble Baroness also touched on the matter of immigration. We will not be closed to immigration—we will be able to control it. That lies at the heart of the decision that the British people made in the referendum.

The noble Baroness also raised, as did other noble Lords, the question of the devolved Administrations and the matter of devolved competence. Of course, the Government will respect, as they always have, the Sewel convention. In addition, we will engage with all the devolved Administrations in the matter of the negotiation and the outcome of the negotiations with the European Union. Furthermore, so far as Ireland is concerned, we are of course alive to the issue of the hard border, which was alluded to by the noble Baroness, Lady O’Loan, and we are of course determined and have raised already in the negotiation the question of how we can deal with the need for a soft and essentially open border between the north and the south of that island.

On a related issue, my noble friend Lady Hooper raised the question of the overseas territories and of Gibraltar. Again, we have made it perfectly clear that we will represent the interests of the overseas territories and of Gibraltar in the forthcoming negotiations. Indeed, we will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their wishes, nor enter into any process of sovereignty negotiations with which Gibraltar itself is not content. We have been absolutely clear: our exit negotiations cover Gibraltar as we leave the EU, and our focus is to get the best possible deal for the United Kingdom, for the overseas territories and for Gibraltar.

I turn to some observations of the noble Lord, Lord Wallace of Saltaire, and of some of his colleagues on the Liberal Democrat Benches. He suggested that the United Kingdom Government are somehow asserting that they hold all the cards in this negotiation. That is not the position that we adopt. Indeed, if we held all the cards, there would not be a negotiation; it would be a matter of dictating terms. There has to be an open and mutually beneficial negotiation to achieve the outcome we all seek. He also suggested that we were somehow simply turning our face away from the European Union and towards countries such as New Zealand, India, China and others. Of course, we seek to embrace the opportunities that will arise with regard to trade in these other parts of the world, but we are not closing off trade with the European Union in any sense whatever. We are not turning our back on our partners in Europe; we will continue to engage with them to our mutual interest and mutual benefit.

The noble Lord went on, in a number of ways, to criticise the approach that the Government are taking, as if somehow we were moving towards an absolute Brexit that took no account of the views of the people of this country. I remind him of the point made by his noble friend, the noble Baroness, Lady Smith of Newnham, who suggested that when the Government respond to the matter of the EU negotiations, they should respond with humility to the people. I respectfully suggest that the Liberal Democrats might also respond with some humility to the view of the people, both as reflected in the referendum and in the recent election, where they went to the people with a particular view of Brexit that clearly was not palatable. So a degree of humility all round might be beneficial to the entire process.

Scotland Bill

Debate between Lord Keen of Elie and Lord Campbell of Pittenweem

Monday 21st March 2016 Lords Chamber

[Lord Campbell of Pittenweem (LD)]

My Lords, it may be stretching the tolerance of the House for a fifth Scottish lawyer to join in this discussion, so I will confine myself to two issues. The first is Pepper v Hart. It is well worth understanding just how limited the application of that doctrine may be. If the noble and learned Lord the Advocate-General is looking for an illustration of the approach recently taken by the Court of Session, he will find it in the case of British Petroleum v Edinburgh and Glasgow licensing boards.

Secondly, this is about the most political piece of legislation that one could possibly imagine. Within its terms is the opportunity for great political disagreement. It seems to me that the way in which the Government are now proceeding will in some respects justify that disagreement by leaving open an important porthole for those who wish to challenge the will of this House and indeed of the other place.

[Lord Keen of Elie]

My Lords, I am obliged for all the contributions from your Lordships in respect of this matter. I will not seek to repeat the arguments that were rehearsed so fully in Committee and on Report but I wish to make some observations.

The Smith agreement was explicit in its reference to putting the Sewel convention on a statutory footing, and that is what has been done—essentially as the noble Lord, Lord Stephen, noted—in a declaratory sense.

Mention has been made repeatedly of the case of Pepper v Hart. I am not going to go there in any detail, but the starting point for that case is ambiguity. A number of noble Lords indicated that there was no ambiguity. I am inclined to agree with that—but not necessarily for the same reasons. However, it appears to me that if there were room for ambiguity then of course Pepper v Hart might come into consideration.

Reference was made to the LCM—the legislative consent Motion—process and the suggestion that it should be incorporated into the clause. With respect, the LCM is a process of the Scottish Parliament, not of this Parliament—it is what the Scottish Parliament does in response to us applying the Sewel convention—and therefore it would not be appropriate to bring it into Clause 2.

There is then the question of what is or is not a devolved matter. This point—and indeed the difference that I have with the noble and learned Lord, Lord Wallace—is perhaps highlighted by the amendment that he originally proposed. The last part of that amendment says:

“For the purposes of subsection (8), the words ‘devolved matters’ means any matter not reserved to the United Kingdom Parliament under this Act”.

With respect, the Scotland Act 1998 is a great deal more sophisticated than saying that all matters listed in Schedule 5, which are reserved, are the only matters not requiring the consent of the Scottish Parliament. It entirely ignores the fact that, for example, it is not within the competence of the Scottish Parliament to modify any of the protected enactments listed in Part 1 of Schedule 4 to the Scotland Act.