European Union (Withdrawal Agreement) Bill

Debate between Lord Keen of Elie and Lord Wigley

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, the noble Lord perhaps anticipates what I shall come to in the course of my reply—how prescient he is in that regard.

The body is not under a sentence of death and the rationale for the ability to transfer was hinted at by the noble Lord when he talked about bodies that had long outlived their usefulness. I will elaborate on this point in a moment, but I certainly do not consider that the provisions of paragraph 39 impinge on the effective independence of the IMA. I would add—I will elaborate upon this—that we must have regard not only to the intentions of the Executive but to the joint committee and, therefore, to the interests of the other party to the international agreement that has given birth to the IMA.

Let me continue with the point I was about to raise on some of the further amendments spoken to by the noble Lord, Lord Greaves. First, on Amendments 52 and 53, which seek to remove certain standard provisions for remuneration in respect of public bodies, he alluded to the term “gratuity”. There are circumstances in which public servants are brought into a body but, for one reason or another, their position is terminated early or prematurely and consideration has to be given to the question of gratuities. Where public servants are already employed in a position where they can be remunerated and there is a provision for gratuities to attract suitable employees into bodies such as the IMA, one must generally have regard to equivalence of terms and conditions. Therefore, because that appears in the context of other public bodies, it is repeated in the context of this legislation.

Amendment 54 would remove provisions that provide a proportionate and sensible way of approaching potential conflicts of interest for IMA members. At all times those members will be expected to adhere to the Cabinet Office Code of Conduct for Board Members of Public Bodies, and the approach set out in this paragraph in its unamended form is consistent with the code. For example, an individual member may make a subjective decision that they should disclose a conflict of interest but the board may determine objectively that it is not a pertinent conflict of interest and that they can therefore continue. That is why the matter is expressed in those terms.

The Government also expect the IMA to follow best practice in relation to its own transparency. Therefore, we regard Amendments 55 and 56 as unnecessary. Indeed, amending the Bill in the way proposed by the noble Lord, Lord Greaves, would take decisions around its transparency away from the IMA and thus, essentially, undermine its status as an independent body. We regard the IMA as essentially an independent body but, while enjoying the status of an independent body, it must be able to discharge certain functions as it sees appropriate, albeit while having regard to the relevant codes.

There is also a reference to not charging for the body’s functions in Amendment 61. That is unnecessary because this body will not charge for its functions. They are essentially systemic—as the noble Lord, Lord Greaves, appreciated, it is not a case of individual applications and individual disposals—and there is no room for any form of charging. Again, we feel it is unnecessary to consider that amendment.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, important though the IMA will be in providing additional assurances that citizens’ rights will be protected, we do not expect its functions to be required in perpetuity. Indeed, the withdrawal agreement recognises that reality. Years from now, it might be more appropriate and effective to protect these rights differently. It is for this reason that we have included two powers in Schedule 2: one to transfer the IMA’s functions to another body under paragraph 39 and the other to remove or abolish the IMA’s functions under paragraph 40, but only following a decision by the relevant joint committees to do so.

As noble Lords have appreciated, the first power is about future-proofing to make sure that citizens’ rights obligations are monitored as effectively and efficiently as possible in the future. Indeed, years from now, the type of oversight needed for the UK’s citizens’ rights obligations and the wider UK regulatory landscape may have changed materially from what it is today, and in such new circumstances it may be more appropriate and effective for another public body to perform the IMA’s role. Removing that power, as would be required by Amendment 58, spoken to by the noble Lord, Lord McNicol, would make us less capable of ensuring that we are in a position to provide an efficient and effective monitoring of citizens’ rights and obligations.

In any event, we would be sure to keep the EU and the EEA EFTA states appropriately informed of any decision to transfer the IMA’s functions. Again, that would be by way of the joint committee and would not involve some unilateral executive action by the UK Government. Indeed, if this power were ever used, we have ensured that it would not affect the independence and effectiveness of how citizens’ rights obligations are monitored. The Secretary of State must have regard to the need for the transferee to possess the necessary independence and resources to provide effective oversight of citizens’ rights obligations.

Let me reassure the House that the commitments we have made to the devolved Administrations about their role in the Independent Monitoring Authority will be upheld in the event that its functions are transferred to another public body. We have designed this power so that the Secretary of State can make any modifications that he considers appropriate to the constitutional arrangements of the transferee. This will ensure that an equivalent to the important role of the devolved Administrations in the IMA is replicated for the transferee. I hope that reassures the noble and learned Lord, Lord Thomas of Cwmgiedd—I apologise if I have mispronounced the Welsh—and other noble Lords that, in these circumstances, Amendment 59 is unnecessary.

As I indicated, we have included a second power to abolish the IMA, which can be exercised only following a decision by mutual consent through the relevant joint committees, comprising representatives of the UK on the one hand and the EU and EFTA states on the other. This power can do no more than give effect to a decision at the international level. It cannot be exercised following a unilateral decision by the Secretary of State or the Executive. We would give extremely serious consideration to any decision to agree to abolish the IMA and I am confident that the EU and EFTA states would do likewise.

[Lord Wigley]

Will the Minister also confirm that if we were to find ourselves wanting to propose such a change to our former European colleagues there would have been consultation with the devolved authorities before that stage?

[Lord Keen of Elie]

My Lords, it is of the nature of the IMA’s function that it involves consideration of the views of the devolved Administrations and Gibraltar. It also involves consideration of the interests of those in England. We have to have regard not only to Wales, Northern Ireland and Scotland but, in this context, England and Gibraltar. It would be appropriate to consider all their interests if we were to put forward a proposal for the abolition of the IMA. Indeed, I find it difficult to conceive of a situation in which we could put forward a proposal for the abolition of the IMA at the joint committee without having consulted the devolved Administrations. It strikes me as so improbable that one should not give much weight to it.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

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

[Lord Keen of Elie]

My Lords, it was an application about the rights of certain UK citizens resident in Holland having rights post Brexit in Holland. The objective of the case was clearly to secure a reference to the CJEU for the interpretation of certain treaty matters. When that proceeded, it is my understanding that the Dutch Government then intervened in the proceedings and they were the subject of a hearing before the Court of Appeal in Amsterdam. That matter is not yet advised, so that is where it stands. I am afraid I cannot give further details of the case but I understand that it was partly funded by lawyers in the UK. I hope that assists the noble Lord.

As I say, at present we, the EU and the Commission are quite clear on what the concept of EU citizenship means, that the source is the EU treaties, and that there is no provision at present for associate citizenship. If during the course of negotiation the Commission or other bodies in the EU come forward with such proposals, we will of course listen to them. At this stage, though, I invite the noble Lord to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful to everyone who has taken part in this debate: the noble Viscount, Lord Hailsham, the noble Lords, Lord Kerr of Kinlochard, Lord Dykes and Lord Green, the noble Baronesses, Lady Hayter and Lady Ludford, and the noble and learned Baroness, Lady Butler-Sloss. It has been a short but worthwhile debate. Some of those participating in it have seen weaknesses in the amendment, and I accept that there is room for criticism in that direction and that it is a challenge with regard to the status quo within which we are operating.

None the less, I feel that some benefit has come out of the debate, in that the Minister has indicated that the Government would be in listening mode, both in terms of the negotiations that are going on and in terms of what may or may not come forward from the European Parliament itself on this matter, bearing in mind that Mr Verhofstadt has indicated fairly strong feelings in that direction. If it were possible for some form of associate citizenship to develop out of this—if indeed we leave the EU, which I would regret but is likely to happen—that could retain our links for the period while we are outside the EU directly, I am sure that would be of interest to a large number of people, particularly to young people, as has been mentioned in this debate, because they identify with the European dream. The European dimension is part of their identity and they would like to have some access to it in a more formal way. On the basis of the comments made by the Minister, which I welcome as far as he was able to go, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

[Lord Keen of Elie]

But I will not. If the noble Lord wishes me to elaborate on the operation of the sunset clauses, I would be quite content to write to him. At this stage, perhaps I can continue—with the encouragement of the noble Lord, Lord Griffiths—to address the question of the Scottish Government.

We are extremely grateful that we have achieved consensus with the Welsh Government and will be able to take this forward with their wholehearted agreement. I will come on to one or two points raised by the noble and learned Lord, Lord Morris, in a moment. As far as we are concerned, the door is still open for the Scottish Government, and we would be anxious to see them come through it so that we can take this forward with the agreement of all the Administrations in the United Kingdom. However, we are where we are at the present time. As regards their proposed amendments, they would, by different routes, result in a situation in which one of the devolved Administrations would effectively hold a veto over the implementation of UK-wide legislation for the maintenance of the UK internal market. That, I respectfully suggest, could not and would not be appropriate.

The exit from the EU raises complex questions with regard to the construction and application of the Scotland Act 1998 because, in 1998, such an exit was never contemplated. Reference has been made to Schedules 4 and 5 to the Scotland Act 1998 and the mechanisms for their amendment, but, as we were reminded by the noble and learned Lord, Lord Wallace, those are not the only mechanisms that impact upon the competence of the Scottish Parliament. We have to look at the terms of Section 29 of the 1998 Act, which as the noble and learned Lords, Lord Wallace and Lord Mackay, observed raises issues with regard to territoriality in respect of the competence of the Scottish Parliament. I do not want to go into the detail of that at present, but one notices that its competence is limited in that respect, and by reference to EU law as well. Therefore, we do not consider that, at the end of the day, we can appropriately accept a situation in which the devolved Administration can exercise a veto over the exercise of power by the United Kingdom Parliament in situations where it is being exercised for the benefit of the UK as a whole. I hope that that goes some way to explaining, without looking at the complexities of the 1998 Act, why we do not feel we are in a position to accept the position expressed by the Scottish Government on this point.

We simply regret the fact that, despite the very significant efforts—I underline “significant”—of the representatives of the Welsh Government and the Scottish Government in producing an outline agreement, it has not been possible to persuade the Scottish Government to join us on that point.

The noble Lord, Lord Wigley, suggested that this might reflect a lack of trust. As I have observed on previous occasions, this is not an issue of trust. This is an issue of constitutional propriety. Whatever view one takes of the devolved settlement and of where we are with regard to the legislation on that, at the end of the day it is not appropriate to accept that one of the devolved Administrations could effectively exercise a veto over legislation for the benefit of the other members of the Union—namely England, Wales and Northern Ireland.

[Lord Wigley]

I thank the Minister for the detail in which he is responding to this debate and the work that he has undertaken. None the less, there may be issues such as the sheep meat regime, which we have used in a number of circumstances as an example where the differential impact of policies in one area such as Wales may be much greater than the impact in other areas. To that extent, the wishes of the Welsh Government in that context should have a greater weight, in the same way as when Welsh Ministers represent the UK in the Council of Ministers to discuss the sheep meat regime. Is it not possible to fine-tune the Government’s proposals to enable that happen?

[Lord Keen of Elie]

With respect, I must say that it is our clear intention, which is reflected in the memorandum of understanding in the agreement, that we will engage with the devolved Administrations in the consideration of these framework agreements and their application. Of course, these matters will be taken into account at that stage. But I do not consider it appropriate to bring that sort of granular detail into this Bill, which is designed for a very specific purpose. I hear what the noble Lord says and, clearly, we wish to proceed on the basis of mutual respect and understanding with the other devolved Administrations.

In that context, I underline the point in response to a query raised by the noble and learned Lord, Lord Hope, speaking, I understand, on behalf of the Scottish Government who are not otherwise represented in this House. There is no question of this process under Clause 11 being somehow the thin end of the wedge so far as the devolution settlement is concerned. The devolution settlement is a reality of our constitutional situation and one that we extended under the 2016 Act, really quite recently, in light of the Smith review. We continue to respect, understand and wish to apply the devolution settlement. But it is a devolution settlement that has to work for everyone in the United Kingdom. I return to the point that it cannot work for everyone in the United Kingdom if one devolved Assembly or Government assume that they have the ability to exercise what amounts to a veto over legislation that is relevant, pertinent and important to the entirety of the United Kingdom.

I move on to address one or two additional points raised by noble Lords in respect of these matters. The noble and learned Lord, Lord Morris of Aberavon, referred to finance and whether the Welsh Government had missed a trick. I do not believe that they did for a moment. Indeed, they put themselves one step ahead by embracing this agreement and the amendment. But the noble and learned Lord raised a point about funding. He is right to point out that our agreement for the Welsh Government does not speak to funding but that is not to say that funding has been forgotten or put to one side. Clearly, it is a matter that will be addressed. We recognise the importance, for example, of the Barnett formula. We understand why there is concern, particularly about agricultural funding under CAP Pillar 1 under the current EU budget that runs to 2020. We have provided a degree of certainty by promising to continue to commit the same total cash funds for farm support across the UK until 2022. At present, the Secretary of State for the Environment is in close discussion with his counterparts in the Welsh and Scottish Governments on exactly how our agricultural systems should work outside of the EU. I stress that that is not a matter for this Bill. This is the Bill that provides for our exit and our exit alone, so I hope that the noble and learned Lord will accept that. He raised the question of public procurement—again, these issues are not for this Bill but we are clearly conscious of them and they will have to be addressed.

The noble Lord, Lord Griffiths, also raised the question of whether further areas might be the subject of reservation under the freezing provisions of the amendment. We have identified 24 areas for frameworks but a number of other areas that could be the subject of regulations going forward are still subject to discussion. I acknowledge that. Noble Lords may recollect that we published the list of frameworks and included not only the 24 areas I have referred to, but a further 12 where there is ongoing discussion about how they will be addressed and resolved.

I am conscious that I have not answered every question that has been posed. If noble Lords are concerned that I have not addressed a point that still concerns them about Clause 11, as amended, I would be content to receive their queries and write to them. In the event that I write to any noble Lords on this issue or any issue relating to this clause, I will place a copy in the Library. I seek to reassure noble Lords on that point. With that, I will formally move each amendment. I am sorry—the noble and learned Lord, Lord Hope, has to reply.

--- Later in debate ---

[Lord Wigley]

I ask for one point of clarification from the Minister. Does he not accept that there is a real danger of confusion in the public mind between allowing a consent order and actually getting consent? In other words, the process can be one where consent is given, is not given or is refused, but whichever of those three outcomes it is, the process can still go on for a parliamentary resolution here by order; and we know that orders, in the House of Commons and here, go through on the nod most of the time. Is that not a deception, giving the impression that there is a consent mechanism when, in fact, it is a pretty meaningless one?

[Lord Keen of Elie]

I simply do not accept the noble Lord’s characterisation of the matter. It is clearly the case that where consent, for example, was sought and not obtained, it would be necessary for the Minister of the Crown to address that, very clearly and specifically. There would be the opportunity, as there always is, for the devolved Administration to make their own views clear as to why they had declined consent. I do not believe that this is in any sense deceptive, misleading or a mirage. These are constitutional requirements that are adhered to and that will be adhered to. It would not be appropriate to introduce the sort of amendment moved by the noble Lord that would, in effect, tie the hands of this sovereign Parliament, so far as this exit process is concerned. Whatever view one might take about the merits of exit, that is neither here nor there. This is a constitutional principle with regard to the sovereign Parliament of the United Kingdom when it comes to legislate for the benefit of the entirety of the United Kingdom. I therefore urge the noble Lord to withdraw his amendment, and indicate that I would not expect to return to this matter at Third Reading.

[Lord Wigley]

I am very grateful to the Minister. I have heard that form of words from his colleagues in the past. Clearly, this is a matter on which there may be a difference of opinion. I realise the need for there to be coherence on a UK scale but there are matters which have a specific effect in Wales, Scotland or Northern Ireland where their interests need to be taken into account. Clearly, we are not going to make progress on this tonight. Therefore, on the basis of the discussion we have had, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

I shall just finish the sentence, so will the noble Lord please sit down? It would effectively prevent the present Bill getting on to the statute book and achieving its intended purpose: to ensure legal certainty at the point at which we leave the European Union.

[Lord Wigley]

I am very sorry to hear that this would prevent the Bill reaching the statute book. Notwithstanding those feelings, I ask the noble and learned Lord to address the point I raised in my earlier comment about the 1969 Vienna Convention on the Law of Treaties that that convention,

“will be binding on all remaining Member States, the UK, and the EU itself post Brexit”.

Does he accept that the convention,

“ensures that the status and rights of those EU citizens resident in the territory of the Union and those resident in the UK will continue”,

after Brexit?

[Lord Keen of Elie]

I hope the noble Lord did not pay good money for that opinion. He will perhaps elaborate on the position in due course, but I do not accept that proposition.

[Lord Wigley]

I will not come back after this intervention, but has he read the document to which I referred, or have experts in his department done so?

[Lord Keen of Elie]

I have not read the opinion in question, but I am not unfamiliar with the terms of the Vienna convention on treaties.

--- Later in debate ---

[Lord Wigley]

If between now and Report he or his advisers have an opportunity to read that opinion and, having done so, feel that what has been said in a Chamber does not fully reflect the situation, will he be prepared to come back at a later stage?

[Lord Keen of Elie]

I am perfectly content to look at the opinion.

[Lord Keen of Elie]

The reality is that if Brexit takes place we will not continue to be EU citizens.

[Lord Wigley]

My Lords, I am very grateful to everyone who has participated in this short debate, particularly to the noble Earl, Lord Clancarty, who I am sorry I relegated in my earlier reference. I also thank the noble Lord, Lord Adonis, with whom I usually fully agree on these matters, although it was encouraging to hear that there may be alternatives by not pursuing this Bill. I thank the noble Baronesses, Lady Smith, Lady McIntosh and Lady Hayter, and the noble Lords, Lord Davies, Lord Kerr and Lord Roberts of Llandudno, for their comments. I think I have got as far as I am likely to get on this. I was grateful to the Minister for saying that he is prepared to look at the opinion to which I have been referring. I can ask no more than that, and on that basis, I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

Wednesday 21st March 2018 Lords Chamber

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

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

[Lord Wigley]

Will the noble and learned Lord give way?

[Lord Keen of Elie]

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

--- Later in debate ---

[Lord Wigley]

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

[Lord Keen of Elie]

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

--- Later in debate ---

[Lord Wigley]

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

[Lord Keen of Elie]

No. With great respect—

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

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

[Lord Keen of Elie]

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

[Lord Wigley]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

[Lord Wigley]

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

[Lord Keen of Elie]

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

Selection of the President of Welsh Tribunals Regulations 2017

Debate between Lord Keen of Elie and Lord Wigley

Wednesday 29th November 2017 Grand Committee

[Lord Keen of Elie]

I am obliged to noble Lords and to the noble Baroness for their contributions. I begin with the point raised by the noble Lord, Lord Thomas of Gresford. I entirely agree with his observations about the importance of maintaining the independence of the judiciary and, equally, of defending the judiciary from inappropriate attack. There is an important distinction to be made between what can be regarded as justified criticism and what is tantamount to abuse. We have to underline that distinction if we are properly to defend the judiciary. Of that there can be no doubt.

On the question of whether these powers should be used, I again entirely agree with the noble Lord. This is the alternative mechanism to be employed, but it is contemplated that it will be employed only in circumstances where there is a breakdown in agreement between various parties. It is not something that is contemplated, but because the Act makes provision for this alternative mechanism it is only appropriate that we should have regulations in place so that, if necessary, it can be employed.

On the matter of who will be the president of the Welsh tribunals and his role so far as defence of tribunal members is concerned, remembering that some of those tribunal members are lay members, it is doubly important there is somebody there who can advise and defend their interests. One of the responsibilities of the President of Welsh Tribunals will be not only the training and guidance of members of the tribunals, but consideration of their welfare. That again is important.

On the point raised by the noble Lord, Lord Wigley, on the Welsh language, of course we recognise the importance of the Welsh language in the context of proceedings in Wales, but we have to remember that we are making an appointment to the judiciary of England and Wales. While the proceedings of those tribunals may take place in Welsh as distinct from English, it is not considered appropriate that we should extend the criteria for the appointment of this post to include the Welsh language itself.

[Lord Wigley]

I hear what the noble and learned Lord says. There are numerous bodies that have responsibilities that go beyond the borders of Wales where the status of the Welsh language is recognised. I would not have been surprised if there had been no provision at all for equality here on the basis that other legislation covers it, but if we are writing the equality of men and women and racial equality into this, surely it is not unreasonable to write the language in because some of the work will be undertaken in Wales, if not all of it.

[Lord Keen of Elie]

With respect to the noble Lord’s observations, language is not an equality issue in that context in the same way as the other criteria he alluded to. It is a matter of context. Of course it is important we recognise that the use of English and Welsh have equal demands on any tribunal process in Wales, but that is quite distinct from how you go about the appointment criteria.

[Lord Wigley]

I am sorry; I do not want to labour this unduly. The language question has, to a large extent, been put to rest in Wales over recent decades after there was a lot of strong feeling about it on the basis that there was recognition of language being an equality criterion. I do not know whether it is technically so in the legal framework here but, surely in terms of the spirit of what is being done here, it should be accommodated.

[Lord Keen of Elie]

With respect, there is no issue about whether an individual applicant would be prejudiced whether he spoke only Welsh or only English or both. That is why I say, in this context, it does not arise for the purposes of this schedule. If an applicant came forward who did not speak English but spoke only Welsh, there would be no issue about that applying to the suitability of his appointment.

[Lord Wigley]

May I help the Minister? I do not want to see issues like this boiling up to become another bullet in a language war, as it were. It is the sort of thing that we need a harmonious approach towards. Equality is regarded as being relevant in a language context, as in other contexts, and therefore, if it is necessary to write it into the terms as they are here, I cannot see why they are not broad enough to encapsulate language, but I have made my point.

[Lord Keen of Elie]

If I can make one short addition, it is that these regulations are concerned with the technical operation of judicial appointments and therefore, again, our view is that the question does not arise in this context.

I turn to territorial application. My understanding is that technically, in the context of tribunal appointments, we are looking across the UK and not just at England and Wales, which is why the regulation extends as it does. There are circumstances in which tribunal membership can move between the various jurisdictions.

On the consultation process and diversity in particular, diversity is of course taken extremely seriously. I believe that we have some figures with regard to tribunal membership. I am not sure that I have figures with regard to the chairmanship of tribunals. As regards male and female membership, about 40% of tribunal members are female. In the senior courts, the figures are of course different but, for tribunals, the figure is as high as it is anywhere. As far as BAME in tribunals is concerned, the number is about 10%. Interestingly, perhaps, we even have a figure for those who are of a non-barrister background. I am not quite sure what a non-barrister background amounts to, but 66% of tribunal judges come from a non-barrister background. On whether that is regarded as a good thing or a bad thing, I will not comment. If the noble Lord, Lord Beecham, wishes to have figures about the chairmanship of tribunals, and their gender mix, I can undertake to write to him, if those figures are available. I do not know if they are; I know that the overall figures are there, as I have just mentioned. That, I hope, addresses the points that noble Lords have raised.

Prisoners: Imprisonment for Public Protection Sentences

Debate between Lord Keen of Elie and Lord Wigley

Thursday 20th July 2017 Lords Chamber

[Lord Keen of Elie]

With respect to the observations made, I first make this point: the licence period is actually for life, but the licensee can apply to have it limited to 10 years. That is the present position. More pertinently, let me draw this to the attention of the House: over 30% of those released under licence as IPP prisoners are in breach of their licence conditions within 12 months of release. They do not wait 10 years; they do not wait five years. Where there is a problem with regard to release under licence, it emerges very swiftly after release.

[Lord Wigley (PC)]

My Lords, does the Minister accept that in the case of IPP prisoners who are way beyond their tariff and for whom training courses for rehabilitation may not be available, it is little surprise that many of them have their attitude to society aggravated by that experience? Can he give an assurance that every IPP prisoner now has access to the courses necessary for those purposes?

[Lord Keen of Elie]

IPP prisoners have access to the appropriate programmes and matters have improved considerably over the past few years so far as that is concerned, but it is not always necessary that an IPP prisoner should undergo a specific programme to satisfy the Parole Board as to their suitability for release. There are other means by which this can be achieved.

Sky and 21st Century Fox: Proposed Merger

Debate between Lord Keen of Elie and Lord Wigley

Monday 6th March 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to my noble friend Lord Deben. Of course, a vibrant free press and a plurality of press sources is a fundamental part of any democratic society. That is why the Enterprise Act provisions exist: to ensure that public interest considerations can be taken into account when looking at media mergers.

[Lord Wigley (PC)]

My Lords, perhaps the noble and learned Lord can help me with the question of potential implications of legislation going through the House. Clearly, every case has to be considered on its merits, but the Secretary of State has to undertake that consideration in the context of the legislative background. Can the fact that legislation is being passed influence the timing by which a decision is taken?

[Lord Keen of Elie]

It does not appear to me on the face of it that proposed legislation can properly impact in terms on the decision-making process which, in the first instance, will involve a decision in the next 10 days and, thereafter, a report from Ofcom, which I believe is normally, under ministerial guidance, to be produced within 40 days if a decision is made. It is very difficult to see how any proposed legislation can impact on that decision-making process.

European Union (Notification of Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wigley

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 1st March 2017 Lords Chamber

[Lord Keen of Elie]

I thank noble Lords who have contributed to this part of the debate. The lateness of the hour does not reflect the importance of the issues being considered. I recognise the power of feeling in the House with regard to the issues being debated and the amendments that have been proposed, and acknowledge the interest that various Members have in maintaining and promoting each of the constituent parts of the United Kingdom, including London, and the contributions they have made.

As the Prime Minister has said, it is more important than ever that we face the future together, united by what makes us strong: the bonds that unite us. The Government are determined to ensure that the interests of all parts of the United Kingdom are fully taken into account in our negotiations with the European Union. We recognise the importance of engaging closely with the devolved Administrations as we embark upon the forthcoming negotiations with the European Union, and we welcome the input of the Scottish and Welsh Governments and the Northern Ireland Executive. As the Prime Minister has said, consideration of the proposals of the devolved Administrations is an ongoing process. Work will need to be intensified ahead of triggering Article 50 and continued at the same pace thereafter.

We have to remind ourselves that it was a United Kingdom referendum and the United Kingdom that voted to leave the European Union. The legal and constitutional responsibility for the United Kingdom’s relationship with the EU lies with the United Kingdom Government and Parliament. We have been clear that no part of the United Kingdom can have a veto over that process. As the noble Lord, Lord Empey, observed, aspects of these amendments could ultimately constitute an exercise of veto by the legislature in one of the devolved areas.

[Lord Wigley]

We have heard that there are problems in Northern Ireland and, perhaps, an unwillingness to accept some of the attitudes taken by the Government in Scotland. However, the Government have an agreed White Paper from Wales. Will the Minister—and, perhaps, his colleague the noble Lord, Lord Bridges—undertake to study this very carefully indeed to see whether there is a basis here for policy which is not just acceptable in Wales but may also be relevant in other parts of the United Kingdom as a positive way forward.

[Lord Keen of Elie]

My Lords, I can absolutely assure the noble Lord that we are taking into consideration not only the White Paper from Wales but the submissions prepared by the Scottish Government. All these matters have been taken into consideration in the context of our negotiating position following the triggering of Article 50. All the proposals outlined in these papers will be the subject of keen scrutiny by the Government. What we are considering today is a Bill to implement the referendum result and respect the judgment of the Supreme Court. We are not engaged in considering a vehicle for determining the terms or shape of the broader negotiations that will follow the triggering of Article 50. As has been said on many occasions, that will be a hugely important milestone for the United Kingdom but it is only a milestone, not a cut-off point. It is not the end of the process—it is merely the beginning.

Since the referendum result there has been regular and ongoing political engagement. I noticed that the Prime Minister’s very first visit following the referendum result was to Edinburgh, quickly followed by Cardiff and Belfast. I remind the House that the principles which underpin relations between the United Kingdom Government and the devolved Administrations are set out in a memorandum of understanding. There is the joint ministerial committee which should operate—I say should—by consensus, because as the noble Lord, Lord Empey, and the noble Earl have observed, it is not always possible to achieve consensus, but these bodies have that aim.

At the plenary session of the joint ministerial committee in October last year, the four Governments agreed to create a Joint Ministerial Committee on EU Negotiations, chaired by the Secretary of State for Exiting the EU. Under that structure, Ministers and officials from the UK Government and the devolved Administrations have engaged closely in the process of considering our exit from the European Union. That committee has been meeting monthly and a wide range of matters has been discussed on each Government’s requirements for the future relationship with the EU, and the future relationship between the devolved Administrations and this Government.

Over the autumn, we also undertook important work with the devolved Administrations to fully appreciate their priorities and interests. In that context we have taken account of the publication that the noble Lord referred to—namely, the White Paper from the devolved Administration in Wales, and the Brexit papers published by the Scottish Government—which was submitted to us for consideration in the context of that process.

Outside the formal processes that I have described, we have also engaged extensively with stakeholders in England, Scotland, Wales and Northern Ireland to try to ensure that the interests of all these areas are reflected in our negotiations with the European Union. Ministers have regularly visited the devolved constituent nations of the United Kingdom on numerous occasions for the purposes of those discussions. They have met with a whole variety of stakeholders from SMEs to multinational companies. We have met with MSPs as well. We have tried to engage right across the areas of interest that will be touched upon by our departure from the EU.

A point that was alluded to by a number of noble Lords was how the devolved Administrations will be engaged in determining where repatriated powers should sit in the future. It is a matter of interest to all of us. We must work carefully to ensure that, as powers are repatriated from Brussels back to Britain, the right powers are returned to the United Kingdom Parliament, and the right powers are returned to the devolved Administrations—whether in Scotland, Wales or Northern Ireland.

This will be a matter for further discussion. The Prime Minister has been clear that no decisions currently taken by the devolved Administrations will be taken from them. That is not the end point, but the starting point for this form of negotiation, and we appreciate and understand the importance of addressing how we deal with the repatriation of the acquis in due course. It is important to have these debates, but it is equally important not to tie the Government’s hands as they approach the forthcoming negotiations. In these circumstances, I invite the noble Baroness to withdraw her amendment.

Prisons: Staff

Debate between Lord Keen of Elie and Lord Wigley

Wednesday 22nd February 2017 Lords Chamber

[Lord Keen of Elie]

I am obliged to my noble friend. The state has many duties and obligations, many of which are successfully contracted out to independent contractors, as they are in the case of prisons.

[Lord Wigley (PC)]

Will the Minister tell the House about the position of recruitment for the new prison, HM Prison Berwyn in Wrexham, north east Wales, which is not a private prison? Will he say how recruitment is progressing and to what extent that is being met by transfers from within the system and by recruitment from outside the system?

[Lord Keen of Elie]

As I understand it, recruitment at the new prison is progressing in a satisfactory way and will be done in a staged manner. We will not, of course, suddenly introduce a large number of prisoners into a new prison at one time. I do not understand that there has been any need to recruit from elsewhere within the prison establishment, but I recognise that there are difficulties across the prison establishment, not only with recruitment but with retention of experienced officers. Of course, we are always looking at ways to innovate and deal with that matter. Indeed, the noble Baroness, Lady Walmsley, mentioned the possibility of golden handcuffs—which might be particularly appropriate in the case of prison officers.

Brexit: Role of Parliament

Debate between Lord Keen of Elie and Lord Wigley

Monday 18th July 2016 Lords Chamber

[Lord Keen of Elie]

The referendum was an exercise in democracy, in which 17.5 million people cast their vote to exit the European Union.

[Lord Wigley (PC)]

My Lords, while it is perfectly clear that the vote in the referendum was to change our relationship with Europe, what was not clear were the alternatives that were being discussed. Is there not a duty on the Government to bring before Parliament a Green Paper or White Paper outlining the alternatives, with the pros and cons, so that there can be a proper debate before decisions are taken?

[Lord Keen of Elie]

The Government have established the Department for Exiting the European Union to form a view as to the basis on which we do exit the European Union.

Euro 2016: Fan Violence

Debate between Lord Keen of Elie and Lord Wigley

Tuesday 14th June 2016 Lords Chamber

[Lord Keen of Elie]

I am not sure that at this stage the Government would wish to encourage the Russians to place police officers in France for the purposes of the championship.

[Lord Wigley (PC)]

My Lords, is the Minister aware that the behaviour of the 24,000 Welsh fans at Bordeaux on Saturday, of whom I was one, was described by the French police as incident-free and by the French press as a joyous occasion? Will he commend to the English fans the need to replicate this approach to sport in whatever remaining games England have in this competition?