European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, I hoped that I would get an opportunity to intervene, as the person who first presented to Parliament the text that has just been referred to in Section 1 of the Children Act. I strongly support the view that the interests of the children in question should be the primary consideration in everything that applies in family law. I am interested to see that the definition of family law chosen in Amendment 336 is not one of ours but is imported from the European Union. However, that is a rather unimportant point.

If this Bill is ever to finish its Committee stage, it is important that we realise that it is concerned primarily with putting existing European law which is effective in our country on to the statute book in a way that will work on Brexit day. It is not concerned with the negotiations—although your Lordships are interested in how they progress, and nobody is more interested than I am in how children’s affairs will progress. I agree with what has just been said: it is a question not of politics or ideology but of making sure that we have the best thing we can for our children. Incidentally, I do not agree that we did not enjoy the speech of my noble friend Lord Farmer. He can speak for himself, but it is not for us to make judgments of that kind about our fellow Members of this House—and I hope that nobody is judging me too hard, either.

My point is that the Bill cannot provide for reciprocity. We cannot legislate for the laws of France, Germany or anywhere else in the European Union—but we can do our best to ensure that our law conforms as far as possible with existing European law when Brexit day comes, because that is an invitation to the others to reciprocate. If we have a system that does not in any way mirror the existing European system when Brexit day comes, how can we ask others to do the same? We cannot. Therefore, it is a question not of reciprocity but of ensuring that this Bill does things properly from our point of view and that the ground that we have to plough for reciprocity is properly ploughed and ready. That is why the Bill is so important.

It is also fairly important that we make some progress with the Bill. Therefore, I will say simply that I entirely endorse the importance of family law and the reciprocal arrangements with the EU, and I would like to see more effective reciprocal arrangements with many other countries. From my time as Lord Chancellor for 10 years I have strong and sad memories of receiving many people who complained that their children had been abducted and taken to a country from which they could not be brought back. That is not the way in the European Union and, fortunately, it is not the way in quite a number of other countries.

It is true, however, as the noble Baroness said, that you may be required to employ a lawyer. In fact, it is rather difficult to get your maintenance payments in this country, never mind the United States. I did my best to try to improve that situation with the CSA—but it has not proved very satisfactory, as the noble Baroness knows very well. It was a difficulty: many times people came to me and said that although they had an order from the court for money, they could not get a penny.

This is an important series of amendments and it is right that we should look at them. However, we must restrain ourselves from considering the negotiations if we are going to finish this Bill at all.

[Baroness Deech (CB)]

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

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

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

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[Lord Campbell of Pittenweem (LD)]

My Lords, I can be brief. I wish to support the various submissions made by the noble Lord, Lord Pannick, but also to draw your Lordships’ attention to some revealing contents of the Constitution Committee’s report, in particular the words of the Solicitor-General, which seem to indicate very clearly the weakness of the Government’s position.

As I recall, the noble Lord, Lord Pannick, confined himself to the first sentence of paragraph 69 of the report:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


He went on to say that this is a recipe for confusion and legal uncertainty. I invite your Lordships to look to paragraph 67 on page 23 of the report, particularly the direct quote from the evidence given by the Solicitor-General. He says of the powers under discussion that,

“there is nothing unusual about these powers. However, I accept that the way and the context in which they are used is somewhat unusual … I accept that we are in new territory here. Having said that … when embarking on new territory, all Ministers tread extremely carefully”.

If this is genuinely new territory, it is inevitable from the Solicitor-General’s expression that there is no precedent. If there is no precedent for exercise of powers in the way the Government seek, that is not just something where we should tread extremely carefully; it is something which should be rejected outright.

[Lord Mackay of Clashfern]

I indicated at Second Reading that I would support the propositions that the noble Lord, Lord Pannick, has enunciated on behalf of the Constitution Committee. Bringing into our system legislation from an alien system and doing so reasonably consistently require it to have an allocated status of some kind. Making it primary legislation is probably the best. Otherwise, there will be doubt about precisely which item of legislation goes to a particular area. The result will be to make it possible to dispense with the rather outmoded idea of the supremacy of EU law once Brexit comes along by the date which allows our ordinary system to operate.

I have tremendous respect for the Bingham system and, as your Lordships know, for the noble and learned Lord whose name it carried. It has kept up the traditions and quality of his work wonderfully—I should perhaps in passing declare an interest: I find it very useful to support the Bingham institute in connection with its funding. However, it makes quite a lot of the difficulty of using Henry VIII clauses. This is a very special situation, as the Constitution Committee recognised some time ago, because trying to fit together two systems of legislation is certainly difficult. We must remember the timescale involved in trying to do it any other way. I shall not comment on the detail of the powers to amend proposed in the Bill—that is for a later stage—but it is reasonable at the moment to accept that this is a very special situation with a necessary operation which requires to be performed in reasonably short time to make the whole thing work. Therefore, the idea that we are dividing primary legislation by this method is open to doubt.

[Lord Adonis (Lab)]

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

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

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

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Taylor of Bolton (Lab)]

My Lords, while I do not want this section of the debate to be dominated by members of the Constitution Committee, I should congratulate my noble friend Lord Pannick on the way he presented the amendment despite it certainly not being in the interest of the legal profession—if we manage to get legal certainty in the Bill, the lawyers will not have their field day. However, I fear that, unless we achieve legal certainty and the clarity that my noble friend mentioned, we will be in real difficulty. Our committee has put forward suggestions, but we do not think that they are the only ways forward. It is important at this stage that the Government recognise the extent of the problem and the damage that will be done if we do not have some amendment and some concessions from them in this area. It is of course an area linked to the other parts of the Bill, because, unless we make changes here, the powers that the Government will have under Clause 7 will be completely unacceptable because of the breadth of legislation there captured.

I therefore urge the Minister to reflect carefully not only on the suggestions of the Constitution Committee but on those of others outside, because this problem will dog the Bill for ever if we do not make some changes here.

[Lord Mackay of Clashfern (Con)]

I support the idea that we should get legal certainty in the Bill, and if that damages the interest of the legal profession, it is damage in the public interest.

However, I venture to suggest that it may be wise to leave this provision pretty much as it is. That is because quite a lot of legislation was passed in the light of obligations imposed by the European Union, but we proposed our own legislation to deal with it. As the noble Lord, Lord Pannick, excellently illustrated, that legislation is exemplified by the Equality Act. I read this clause as referring only to the part of the enactment,

“so far as … passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of that Act”.

As the noble Lord, Lord Pannick, said, “enactment” sometimes suggests a whole Act, but this provision restricts it to the part of the enactment that deals with this point.

As the noble Lord, Lord Beith, said, it is quite likely that some of these measures are gold-plated—there used to be quite a lot of suggestions from various quarters that we went in for gold-plating. When I was in a sense responsible for some of these matters, I discovered that the gold-plating was more a result of some antagonism to the Bill in question than it was gold-plating in the sense of going beyond what the European Union required. So far as there is gold-plating of that sort—that is, unnecessary as far as the European Union is concerned—I do not think that this clause would strike it, because it is “so far as” the thing is made in view of the provisions “in section 2(2)(a) or (b)” and so on of the Act. Of course, as has been pointed out, it is perfectly likely that in some of these provisions that were introduced in that way adjustment will be required because we are leaving the European Union.

Some provisions—I have not looked too closely at how many but I imagine there might be quite a few—of these ordinary Acts of Parliament will have a connection with the European Union that may be affected by our leaving it. Therefore it is important that in that situation a power to deal with that matter in a reasonable time would be required, and we will be looking at these later. Therefore, I am inclined to think it may be better to leave this provision as it is. I am very interested to hear what my noble and learned friend the Minister has to say about that.

As for the supremacy principle, I will have something to say about that if I happen to be present when it arises. I said at Second Reading and I say again that I think the Constitution Committee has produced a superb solution to that problem, which enables us to forget for ever the supremacy of European law over our law.

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[Baroness Young of Old Scone (Lab)]

My Lords, I repeat the worries about coming in on a debate populated primarily by lawyers, but if my noble friend Lord Adonis can do it, I can have a go. I very much welcomed the intent of the Constitution Committee and the amendment of the noble Lord, Lord Pannick, but I subsequently received a briefing that raised a question about it. I am very grateful to the noble Lord, Lord Pannick, for alluding to the issue of the amendment meaning that UK courts could not be required to consider existing European court decisions when interpreting and applying provisions that have been implemented through UK law by Acts of Parliament or regulations introduced under Acts of Parliament other than the ECA 1972. I am grateful that he referred to the Bingham Centre proposal that there needed to be consequent amendments later in the Bill to cover that. I want to highlight the importance of that because the reality is that about 80% of environment law stems from the European Union and much of it would be caught by this provision. We just need to be sure that if this provision were recognised as needing to be addressed by the Government, we will see that subsequent amendment to allow ECJ decisions to be taken into account.

[Lord Mackay of Clashfern]

I entirely agree with that proposition but since the noble Lord, Lord Pannick, had mentioned it, I thought for the sake of brevity I would leave it out of my remarks.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I do not entirely agree with the Constitution Committee and so, with suitable temerity, I will suggest modifications to its approach as we go through this and later clauses. Not surprisingly, I look at matters from the perspective of recent familiarity—one could say rather too much familiarity—with the making of EU legislation. So I know rather more about the input end of the pipeline than the output. But it is at the EU end of the pipeline that the genetic markers of EU principles and case law get attached, and since those markers have been reproduced in UK case law and the reasonable expectations of those affected, I have great concerns.

I accept that it is not easy to move legislation made in one constitutional environment to a different one without losing something. The Government have tried and their approach leads to various types of uncertainty, which are then plugged, as far as they can be, through sweeping ministerial power, which brings forward more concerns and uncertainty. So something needs to be done but the Constitution Committee package, while having good ideas to build on, does not quite gel for me. I have made some suggestions to sort out the wrinkles as I see them. They come mainly in amendments to later clauses but they have backwards relevance to Amendment 15. Like others, perhaps, I also discovered on Monday, thanks to my noble friend Lady Hamwee, that the Bingham Centre had done a report, which I think I can claim in part has similar conclusions to mine on Clause 2 and, indeed, elsewhere.

When it comes to Amendment 15, moved by the noble Lord, Lord Pannick, I am torn in two directions. Doing what the amendment suggests, as with other suggestions from the Constitution Committee report, is not without constitutional cost, as is mentioned in the report in respect of the Clause 5 proposals. But it happens with Clause 2 as well: some legislation that currently has an EU dimension, and therefore would benefit from judicial interpretation using EU general principles such as proportionality and fundamental rights, will no longer benefit from that. I could add to that environmental issues that are in the EU constitution. Against that, it reduces the extent of legislation that falls to be amended under Article 7 and there is a lot to be said in favour of doing less—there will be less confusion, more time for scrutiny of the remainder, and less chance of this becoming the great gold-plating Bill.

I am not immune to suggestions that if a directive has been transposed via an Act of Parliament and that Act of Parliament has established delegated powers that have been used for other transpositions, then Parliament knew what it was doing. But without examining all the documents and the details, what was the background? Did the Government say that they had to do certain things because of the EU? Did they in fact say that to close down some other amendments? What did Members have in their minds about equality and other EU fundamental rights that were well known? They could not just say that they were not taking those into account.

If you are looking at the hybrids, as has been mentioned, some Acts may be—let us say for simplicity—half EU and half UK. One that I would choose is the Data Protection Bill, where the UK has been prepared to go much further than the EU in what can be retained. You need to know which bit is UK-only and which bit is European-only. I have always assumed that it was to only the EU-derived part that supremacy and all the EU general rights would apply, and you would have to look at how it was couched.

There is also the matter of onward intertwining. The Bingham Centre also uses the example, at the foot of page 21, of the Equality Act 2010. However, it points out that there are decisions of domestic courts interpreting that Act in the light of CJEU case law, so our decisions are going to be consistent going forward. It is considerations such as that that then provoke its first conclusion on this, which is in paragraph 60 on page 22. That suggests, as the noble Lord, Lord Pannick, has acknowledged, that to make things work, you need to do something extra in Clause 6 about how to interpret legislation that has been removed from the scope of Clause 2. There is also a second, alternative conclusion in paragraph 61, which suggests amending other provisions; a future report is then promised.

As I have said, I did not get the report till late, so I had already gone ahead and made my plans. When I thought about it, one of my conclusions was that, perhaps instead of closing down the scope of the application of Clause 2, the thing to do was to close down the scope of Clause 7. My proposal, therefore, is not to exclude subsections 2(b), (c) and (d) from Clause 2 but to exclude them from having effect in Clause 7. That way, they will not be amended and tampered with, possibly apart from when it is necessary to remove some trivial EU reference that might no longer apply. I have already tabled an amendment that does that, which is on the supplementary Marshalled List for today.

I know that leaves the judges still having to look at EU principles over a wider range of law. If I interpreted some of the comments correctly on Monday, they would perhaps prefer to change that constitutional burden so that it fell somewhere else. However, I do not see how one can avoid that having to continue: that is the status quo, and judges have to look at where there is an EU angle—some EU derivation—and apply general principles and other things as appropriate. Without knowing what the subject matter is, it is very difficult—even dangerous—to come up with a blanket change, because you do not know what might be missing. In some cases it probably does not matter, in other cases it might be quite sensitive, and in others you would most certainly be throwing away some of the things about which other noble Lords have already spoken passionately with regard to fundamental rights. You would also be throwing away certain things to do with the environment. I have other suggestions for modification as we go forward, but I will leave those to the relevant clauses.

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[Baroness Smith of Newnham (LD)]

My Lords, I support the amendment and declare my interest as being employed by Cambridge University; essentially my day job is teaching European politics. As the noble Baroness, Lady McIntosh, and the noble Lord, Lord Wigley, have pointed out, this amendment fills a gap in the proposed legislation, although I understand that it is probing in nature. At present, Clause 2 talks about saving EU-derived domestic legislation—that part is clear—while Clause 3 looks at incorporating direct EU legislation. However, the gap lies in EU legislation which has been agreed or adopted, and here I disagree with the noble Lord, Lord Pannick.

If the legislation has already been adopted by the European Union it will not then be amended, so the issue is that if the 28, including the United Kingdom, have already agreed legislation but the UK has not yet transposed it, that is legislation which we would have expected to be in place at the snapshot point of 29 March 2019. If the legislation has not been transposed by then, there is a question of where we are on 30 March 2019. If, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it is simply a question of adopting things later, that is one thing for a crash-out Brexit, but if there is going to be a transition period and we are supposed to be absolutely at one with the EU 27 on the day we leave, surely that includes legislation that has been adopted but which we have not yet transposed and which we therefore have a duty to transpose.

[Lord Mackay of Clashfern]

My Lords, it is fairly clear that this Bill already has enough to do in trying to deal with the situation of withdrawal, and it cannot be right that it should take account of any transition period or implementation period, whatever you like to call it, until we know a good deal more about it than I do at the moment. That ignorance is possibly shared to some extent by other noble Lords.

On this point, the true position is that once a directive has been adopted by the European Union with a period for implementation by a member state, the obligation on that member state is to bring it into law in its own domestic arrangements within the period stated. The directive therefore does not become part of the domestic law of that member state until its implementation before or by that date. This Bill is intended to deal with the state of the law on the day of our withdrawal and therefore strictly speaking such directives, however desirable they may be, are not really part of our domestic law any more than an Act which has been passed but not commenced is part of our domestic law. I have a fair amount of experience of that happening.

The situation is clear so far as what this Bill should do, but so far as what my noble friend Lord Deben wants, that is another matter. It is perfectly reasonable that the Government should have a policy on that if they want it.

[Baroness McIntosh of Pickering]

Is my noble and learned friend saying that the United Kingdom Government should absent themselves from all legislation and all the directives that are being discussed, whether it is the EU circular waste package or the water framework directive? I believe that the noble Lord, Lord Wigley, referred to 23 directives—I am most familiar with the environmental ones—which fall into the very narrow category where there is every expectation that the UK Government are prepared to sign up to the commitments. However, because the Prime Minister has set an arbitrary date for us to leave, we will not be in a position to implement them. Is it the case that even if we agree them in March 2019 and it is the wish of the Government to implement them, because of the arbitrary date, we will not be in a position to transpose them?

[Lord Mackay of Clashfern]

The problem about the arbitrary date is that it is rather an important one because it is when we will cease to be liable to obligations under EU law unless they are made part of our law by this Bill. The problem is that a directive which has been adopted but not yet put into effect, but with the obligation to put it into effect still running, could in some cases last for as long as two years. That would greatly alter the clarity of the Bill in the meantime. If the Government want to implement one of them there is absolutely no reason why they should not. They will have plenty of legislative power and so long as they can get parliamentary time they can do so. That is a matter of policy that my noble friend has referred to. It is a perfectly reasonable way of dealing with this sort of point.

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[Baroness Ludford]

Before the noble and learned Lord answers that point, I add a further complication. Whether we agree to a directive or not, if it was adopted by qualified majority voting it would still be adopted with an obligation for the UK to implement it. That does not quite solve the issue. What is raised is surely a very valid issue. It may not strictly come within the definitions in the Bill, but there is still a legal obligation if a directive has been adopted at EU level, whether we agree to it or not.

[Lord Mackay of Clashfern]

The legal obligation would cease on Brexit day. That is the situation. Unless something has been implemented by that time it is not strictly part of our law. On deciding what is to happen in the future, as far as I am concerned, there is enough to decide at the moment, but nothing will harm the Government if they give some indication of what they would do with instruments that have been adopted but not yet implemented, although, at the date of Brexit, we were obliged to adopt them on some future date.

[Lord Adonis]

Does the noble and learned Lord think that there is a distinction between those directives that we have agreed to where the implementation date is before or after 29 March 2019?

[Lord Mackay of Clashfern]

If it is implemented before the 29th it is part of our law.

[Lord Adonis]

What if the obligation to implement them is before that date, but we have not fulfilled that obligation?

[Lord Mackay of Clashfern]

The question does not arise if they have not been adopted before. The amendment deals only with directives that have been adopted before Brexit day and, even if they are not part of our law, whether they should be admitted, which the Bill could do. The problem is that that might delay the finalisation of this as an Act in force for some considerable time.

[Baroness Young of Old Scone]

I would like some technical clarification on this. My understanding of the example I gave is that Europe will change the standards for packaging and packaging waste, the landfill directive, end-of-life vehicles, batteries, and electrical and electronic equipment and the old standards will no longer hold, except in Britain. Quite frankly, I am not sure that that is a viable way forward. We will continue to apply standards that everyone else has abandoned immediately on exit day if we do not take forward the implementation of that directive.

[Lord Mackay of Clashfern]

I am beginning to find myself answering questions that I should pass on to my noble and learned friend. So far as I am concerned, it is unlikely that all the member states, if they have plenty of time for implementation, will, except for us, have implemented them on exit day.

[Lord Davies of Stamford (Lab)]

My Lords, I am still not quite convinced by the explanation of the noble and learned Lord, Lord Mackay. Clearly, if a directive has not completed its legislative process by 29 March 2019, there is no question about it: whatever happens to it later on is nothing to do with us and it does not in any way enter English law. Equally, if a directive has been assumed into domestic law and been implemented, there is no doubt that it is part of English law. However, where a directive has completed its legislative process, has been implemented into English law in the normal way but has not come into force because it contains a provision under which it comes into force only at a certain date after 30 March, the English law—or, for that matter, the Scottish law—has already been altered and adopted the new provision. Those provisions enter into force at a certain date subsequent to 30 March but without any further change in the corpus of statute because the measure is already provided for. Surely, in those cases, that directive remains in force in English or Scottish law in the normal way. Even though it had not reached the point at which it would come into effect on 29 or 30 March, it would nevertheless be part of the corpus of law in all the union countries.

[Lord Mackay of Clashfern]

If it has become part of our law, even if it is postponed, it is subject to this Bill. If it has not come into our law, it is not part of this Bill. I shall not answer any more questions.

[Baroness Bowles of Berkhamsted]

I would quite like to complicate matters a little further. It is unfortunate that the word “snapshot” was used, because, if we look at the way in which European legislation comes into force and effect, we see that it is a bit more like a movie in that it keeps on going. Certainly, we may well have implemented some things and they will then come into force, but it would not be on a single date beyond because lots of delegated Acts and implementing regulations would come in progressively over a period of time. I am curious as to what happens when we are straddling that. Will we then take the implementing regulations and delegated Acts on something that we have already adopted into our law, or will we make up those ourselves?

European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Baroness Ludford]

I should briefly like to thank all speakers in this extremely valuable debate, especially the co-signatories to my amendment, the noble Lords, Lord Cormack and Lord Judd, and my noble friend Lady Smith of Newnham. It was evident that, almost without exception, there was very strong support for staying in these crucial law enforcement measures. I am not so sure we got what the noble Lord, Lord Cormack, asked for, which was a reply of real substance. We certainly did not get the clarity that my noble friend Lord Paddick asked for on the ECJ. Quite honestly, that was an extraordinary response to the noble Lord, Lord Pannick. As the noble Lord, Lord Hannay, said, there is no safety net in this area. The WTO is not much of one but it exists.

[Lord Mackay of Clashfern (Con)]

Is the noble Baroness talking of the European Court of Justice as though there would be no change in its constitution as a result of our leaving the European Union?

[Baroness Ludford]

There obviously will be a change, in that there will not be a British judge or British Advocate-General. What we want to know is how we will plug into what the Prime Minister asked for in Munich: to have respect for the sovereignty of the UK’s legal order—the Minister really emphasised only that—but also respect for the remit of the ECJ, at least when participating in agencies. That raises the question: will we also respect the remit of the ECJ when it rules on the individual rights of people who challenge, for instance, a European arrest warrant? We have no answer to that question but the people who are nationals of those countries will want to know exactly what the jurisdictional regime is. I am afraid we are no closer to knowing that. As my noble friend Lord Paddick said, however, we do have clear negotiating objectives in this area—this is perhaps unique in Brexit—as the Prime Minister has set them out and the Minister has just confirmed them. What we are utterly in the dark about is how the Government propose to secure the arrangements, structures and mechanisms for continuing effective and efficient cross-border law enforcement co-operation.

The Minister said that we will have a meaningful vote on the withdrawal agreement, which is supposed to give us an opportunity to scrutinise at the end of the process, and hence that this amendment is not needed. But that is not enough; we want a purchase and input into those negotiating objectives. The Prime Minister makes a speech in Munich and tells us, “These are the objectives”, but the Government do not deign to tell us how on earth those objectives are to be secured. Like me, the Minister is a veteran of the European Parliament. We found there that the European Commission, the member states and the Council learned the hard way that unless you bring the European Parliament, in that case, into your confidence about your negotiating objectives and how you are going to secure them, the danger is that at the end of the process the deal will be rejected because it has not been kept informed along the way. The lesson in Brussels was to front-load the process by keeping the people who might be in a position to block the deal informed of how it was to be secured.

I am afraid the Minister did not convince me, at least, that we are any further forward than we were with the future partnership paper, because that paper did not set out how we are to achieve these objectives. It said what the Government wanted to achieve. That has been repeated by the Prime Minister and the Minister, but we are none the wiser about how these measures will be replicated when we no longer have the structures and mechanisms of the EU. I fear that we will have to come back to this in all seriousness at future stages but, for the time being, I beg leave to withdraw the amendment.

Crown Prosecution Service: Disclosure Procedures

Lord Mackay of Clashfern Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Keen of Elie]

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

[Lord Mackay of Clashfern (Con)]

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

[Lord Keen of Elie]

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

Civil Procedure (Amendment) Rules 2017

Lord Mackay of Clashfern Excerpts

Wednesday 13th September 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I want to say one thing about this statutory instrument. It deals with a particular class of judicial review relating to the environment. It is special in this way: there are limitations of cost already in the system—of £5,000 where the claimant is claiming only as an individual, not as or on behalf of a business or other legal person, and £10,000 in all other cases. For a defendant, the amount is £35,000. In the previous arrangements that was fixed. It is certainly easy to think that, for a claimant, £5,000 might be a substantial amount in relation to his or her environmental interest.

These rules allow the court jurisdiction and discretion to alter these figures either up or down. It is important that the discretion is limited by this phrase:

“The court may vary such an amount or remove such a limit only if satisfied that … to do so would not make the costs of the proceedings prohibitively expensive for the claimant”—


that is the rule from the convention—and,

“in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant”.

The protection for the claimant is the jurisdiction and discretion of the court within the limits that that sets out. Is not in any way a damaging type of jurisdiction or discretion, but one that can help people who have a need for that. That must be taken into account in considering this instrument.

[Lord Pannick (CB)]

My Lords, my response to the noble and learned Lord is that these rules remove the certainty that potential claimants previously enjoyed. That is the vice as I see it. It is essential in these cases that a person considering starting proceedings knows at the outset the maximum liability they will incur. It is no answer to them, when they are thinking of bringing proceedings, that the cap may be reduced as well as increased. They want to know. If they do not know at the outset when considering bringing these proceedings what the maximum is, the likelihood is that many of them will be deterred from bringing these proceedings. That is the damage to access to justice.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Mackay of Clashfern Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, in this country we are privileged to enjoy extensive freedoms, particularly freedom of religion. However, the freedom of religion must accompany the freedom to change one’s religion. It is extremely important that the kind of oppression that comes from the establishments in religion trying to prevent their followers from changing their religion should not be allowed as a matter of law in this country.

The Bill deals with that in what in my judgment is a very effective way, assuming that it became law. First, looking at the provisions of negotiated settlements, it makes it plain that the real consent of both parties is essential for that agreement to stand. That strikes me as fundamental. If a person wants to change their faith or some of its tenets, whether they are a man or woman, they should be absolutely free to do so without any possible restraint. Any attempt to restrain that is in the nature of oppression, which ought to be outlawed so far as possible. Some of these pressures are very subtle and difficult to eliminate or indeed discover or deal with publicly. However, the test put in the clause dealing with negotiated settlement, that the consent must be genuine, is tested by the criteria that are set out. I think that is extremely effective. It is probably as effective as any provision of law could be to deal with these sometimes subtle pressures, particularly on young people.

My second point is about arbitration, which comes first in the Bill. In a sense, arbitration is part of the machinery of our justice system. It is a very distinct procedure from the ordinary court procedure but, if properly carried out under the provisions of our law, it has the effect of becoming binding, just as a court judgment does. The Arbitration Act makes provision for that. There is a need to deal with the pressures that can come under that as a publicly recognised method of enforcement, or of reaching agreement and then enforcing that agreement. In that connection, therefore, the provisions of our ordinary law that apply to everyone else are applied, and the Bill does that in a very balanced way. I am not saying it could not be subject to amendment, but it strikes me as extremely balanced at the moment for dealing with a problem that has been shown to exist in our country in more than one area of religious establishment.

It is important that this matter should be dealt with sooner rather than later. It is easy to put off, but on the whole the urgency of the situation merits action at an early date.

Family Court

Lord Mackay of Clashfern Excerpts

Monday 9th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

I should have thought that the principle which precludes the victim in the criminal courts being cross-examined by the alleged abuser would apply equally in the family court. That principle should apply. Will the Minister confirm that cross-examination is intended to be an opportunity to ask questions to ensure that the tribunal has a proper balance on the facts and is not an occasion on which to offer insults to the party being cross-examined?

[Lord Keen of Elie]

I am obliged to my noble and learned friend, who has a great deal more experience in these areas than I would ever hope to achieve. Clearly, the purpose of cross-examination, whether it is to challenge credibility or reliability or a particular account, should be pursued by way of questions. It is not an opportunity to make statements to the court or to give evidence and should never be an opportunity to resort to abuse, whether of a victim, a witness or the court itself.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, one of the problems is that the no-detriment principle has so far tended to be looked at primarily in financial terms, but I think that the noble Earl is right that there are other detriments of a qualitative nature which he pointed out to the Minister. We could lose something of value. That would be to the detriment not just of Scotland, but of the whole country.

I share the views of other noble Lords that it is disappointing, despite the many concerns expressed in Committee, that the Government have not come forward with an amendment that would seek to address this. We owe a debt to the noble Lords, Lord Faulkner of Worcester, Lord Empey and Lord Forsyth of Drumlean, and to the noble Earl, Lord Kinnoull, who have sought to try to meet the Smith commission’s recommendation while ensuring that the specific functions of the British Transport Police are preserved.

I have some reservations about Amendment 41, which would be inserted at the end of Clause 42. Clause 42 fits the Smith commission’s arguments—it does devolve, in as much as it makes an exception—but my concern about Amendment 41 is that, having devolved, it seems to take back and would make it a requirement to have an agreement between the British Transport Police Authority and the Scottish Government. I prefer Amendment 42, which at least says that, if there is to be a police services agreement that applies in Scotland, Scottish Ministers should be involved, and that the oversight arrangements that the noble Lord, Lord Empey, spoke to—he indicated that they were over and above what was proposed—are consistent with the spirit and the letter of the Smith commission proposals, while trying to ensure that this is a practical way to address them.

I hope that when the Minister responds to the debate he will take on board that there are genuine concerns that a simple further exception to the reservations in Schedule 5 will not necessarily guarantee that the functions of the British Transport Police would be safeguarded after the devolution proposals put forward there. I therefore hope that the Minister, even at this late stage, will be prepared to come back and give some further thought as to how the functions can be properly safeguarded.

[Lord Mackay of Clashfern (Con)]

My Lords, in my view the words used by the Smith commission on this subject do not imply the break-up of the British Transport Police so far as it operates in Scotland. It says that the functions of the British Transport Police shall be devolved. If the British Transport Police does not exist in Scotland, it will not have any functions that are devolved. That does not seem to make sense.

My second point is that if this provision is to be applied in a sense that the British Transport Police is not to function in Scotland, but would have some kind of associated unit in Police Scotland, there will be no chief constable responsible for operations of transport police in Scotland whose exclusive attention is devoted to transport. The chief constable of Police Scotland has some responsibilities other than transport, whereas the British Transport Police chief constable is devoted entirely to transport—the full attention of the most senior rank there is in the police is available relating to transport only. Transport is sufficiently important to merit the attention of a chief constable.

[Lord Berkeley (Lab)]

My Lords, I support my noble friend Lord Faulkner’s Amendments 41 and 42. I certainly will not repeat the excellent speeches made in support of these and the other amendments this evening. I will emphasise one or two things: first, how different policing the railways is nowadays. The noble and learned Lord, Lord Wallace, mentioned Waverley station, which brings me to crowd control of, for example, football crowds. The British Transport Police has an enormous and excellent reputation in ensuring safety of passengers on the Underground and ways into the Underground, and has ways of keeping them safe on the platforms themselves so that the train does not run into them and they do not get pushed on to the track. There is, sadly, the ongoing issue of terrorism and people trying to do nasty things to the trains, which can be very dangerous. There was an incident last Friday in Belgium where somebody put some concrete blocks on the track of a high-speed line. Luckily, the train did not derail, but that can happen anywhere. Again, having the local police going along and dealing with that might be all right, but there is a good chance that it would not be all right. We have to ensure that this specialism is retained and preserved in whatever happens.

My noble friend Lord McAvoy seemed to be saying that we should give the Scots everything they want in this legislation. That is an argument I do not have particular views on, except on the railways. If we want to give them British Transport Police separated from the rest of the UK, why not give them the railway completely? Why not give them Network Rail? There is nothing in the Bill that says Network Rail is going to be owned in Scotland, or separated from the UK. It probably does not particularly matter who owns the railway, but there is the matter of timetabling.

I spent many years in various discussions across Europe trying to encourage passenger and freight trains to move across frontiers without stopping for hours, minutes or sometimes days because the timetable is not co-ordinated. Of course, that could happen here if the Government give the responsibility to Scotland for having a separate timetable. I am sure it would not happen, because we are not that stupid, but it seems to me that if we are going to keep the railways as an integrated whole, and not make all the Virgin trains stop at Carlisle for everybody to get out and get on to a different train, why separate the police?

The other issue of which we ought perhaps to remind ourselves, also mentioned by the noble Lord, Lord Forsyth, and the noble and learned Lord, Lord Wallace, is the question of who pays. We all know that Network Rail at the moment pays 50% of the cost of the British Transport Police and the train operators, passenger and freight, pay the other 50%—I declare an interest as chairman of the Rail Freight Group. If I were a train operator in Scotland and I found that the BTP did not exist there and any policing on the railways was being done by the local bobby, I would say to myself, and to the politicians, “Why do I, operating a train in Scotland, have to pay for policing the railway, such as it is, but if I operate a bus, a car or a lorry in Scotland, I do not have to pay?”. And I would not pay, because it is very out of balance between road and rail—I would probably get nothing for it either.

At some stage, someone is going to have to work out who is going to pay for the policing in Scotland that will no longer be done by the BTP. There is absolutely no reason why the rail passenger or freight customer should have to pay for whatever policing they get and the main competitor, which is road, should not have to pay. Maybe the Minister already has an answer to that.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Wednesday 24th February 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I may be the only person present in the Chamber who was here when Lord Sewel issued these words. Maybe the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Duke, the Duke of Montrose, were there at the same time. As I recall, we were debating these matters late into the night, and at 1 am or 2 am, when we came to Scottish and Welsh matters, there was a blockage. The words that Lord Sewel spoke were a very welcome resolution of a particular problem that had arisen. I recall afterwards that when it was referred to as the Sewel convention we used to rib Lord Sewel that he had unwittingly added his name to something that seemed to have become a great constitutional principle.

I intervene in this debate to refer to the problems in Wales as illustrative of the problems that your Lordships face. We have had three trips to the Supreme Court between the Welsh Assembly and the Wales Office in a very short period of time because we have not had the ability to pass primary legislation until quite recently. Legislative competence is always at our fingertips in Wales. We talk about it all the time. Indeed, the Welsh Labour Government talk about it all the time in holding up the consideration of the current draft Wales Bill. This issue seems to require either a mechanism that resolves the problems or something that is absolutely solid and certain in this particular piece of legislation.

Those who served as my colleagues during the coalition Government in the Wales Office tell me that legislative competence was a weekly discussion and deals were done between the Wales Office and Cardiff in order to solve where the parameters were. Of course we do not have reserve powers devolution in Wales; it is rather different from Scotland. We have been rather envious that Scotland has not so far had to go to the Supreme Court to sort things out in this way. It seems to me, in following my noble friends, that the way it is expressed in the Bill is such that Scottish lawyers will become very wealthy in their trips to the Supreme Court to sort things out. At the moment I am trying to work on a mechanism in Wales that will resolve these difficulties if that cannot be done between Governments in a simple way, not the way that has been arrived at so far. So, go carefully: canny down the brae, as they say, when it comes to consideration of this particular part.

[Lord Mackay of Clashfern (Con)]

My Lords, some time ago I indicated to the noble and learned Lord, Lord McCluskey, that I support his approach to this clause. It is vitally important to consider the question of whether it is intended that the clause, whatever its terms, should be subject to decision by a court of law. The situation so far as Wales is concerned—and I think it would be true for the Scottish Parliament—is that in some cases its powers are subject to judicial scrutiny. The Parliament of the United Kingdom is not of that kind. It has never had its principal functions subject to judicial scrutiny. If a term is put into this Bill, which will then become an Act, that determines when the United Kingdom Parliament can act, that will be a complete innovation. It does not matter what the terms are, however precise and well drafted, I cannot see how that could be excluded unless provision is made in the Bill which states that the decision on this point is to be a matter for the United Kingdom Parliament. This I regard as an extremely serious point which the Government have to decide.

It is not a question of agreeing with the Scottish nationalists. The amendment tabled by the noble and learned Lord, Lord Hope, seems to be in accordance with what they would like to see; that is, the furthest stretch of the convention, which is called the Sewel convention for various reasons, amounting to what is really a complete ban. That is what I think the amendment of the noble and learned Lord, Lord Hope, does, but that does not cut out by itself the idea that a court of law could determine whether the United Kingdom Parliament had acted lawfully in making an Act which could affect Scotland. That is why I strongly support Amendment 12 tabled by the noble and learned Lord, Lord McCluskey. That concept must be put into this clause at some point in order that the matter be not justiciable.

[Lord Forsyth of Drumlean]

Does my noble and learned friend think that Amendment 7, which he says stretches the convention as far it goes, sets out what has actually become the convention now or does he think it has gone beyond that?

[Lord Mackay of Clashfern]

What has become the convention now seems to be government papers. As far as I am concerned, I had not heard of them until this discussion. It is certainly not a convention of the Houses of Parliament in the sense that they are narrated in that context. But I am not so concerned about the precise terms in which this finishes up. What I am very concerned about is that it should not be subject to a judicial decision. The Parliament of the United Kingdom has never been subject, certainly in the present situation, to the courts of law and I think that it would be a tremendous mistake to make provision in a Bill which could only have that effect.

[Lord McCluskey]

Do I understand the noble and learned Lord correctly that, without choosing between them, there are two ways to solve the problem he considers to be so important? One is to do what the noble Lord, Lord Cormack, has suggested—delete the word “normally”—and the other would be to adopt either Amendment 12 or Amendment 13, which provide specifically that the matter shall not be justiciable.

[Lord Mackay of Clashfern]

I do not regard them as alternatives; rather that Amendment 12 tabled by the noble and learned Lord, Lord McCluskey, is absolutely essential. The other form of wording, that it,

“shall not be questioned in any court of law”,

comes from the noble and learned Lord, Lord Wallace of Tankerness, and the noble Lord, Lord Stephen, would be a possible alternative. But something of this kind is in my view absolutely essential if we are setting out in statute a restriction on the power of the United Kingdom Parliament to legislate.

[Lord Hope of Craighead]

My Lords, the problem with the term “Sewel convention” itself seems to beg a question as to exactly what it covers. The word “normally” is not the only problem in that respect.

--- Later in debate ---

[Lord Hope of Craighead]

My Lords, I think I should thank the noble and learned Lord the Advocate-General for Scotland for his kind words. The amendments improve the intelligibility of these provisions. It is important that the system work as smoothly as possible, so I am extremely grateful.

[Lord Mackay of Clashfern]

My Lords, I am glad that these amendments have been made. Of course, I understand that they will require approval by the House of Commons in due course.

[Lord McFall of Alcluith]

My Lords, we agree with the Government on this very sensible measure. We appreciate the minor and technical amendments and fully agree with them. We thank the Minister.

Scotland Bill

Lord Mackay of Clashfern Excerpts

Monday 22nd February 2016 Lords Chamber

[Lord Hain (Lab)]

My Lords, I want to briefly support my noble friend Lord Darling and, indeed, endorse the point made by the noble Lord, Lord MacGregor. It arises, in a way, out of a question that he put to me when I was giving evidence to the Constitution Committee. It is this: we have allowed tax devolution to leave the station without any clear idea of what the destination is.

I am an enthusiastic devolutionist. As Secretary of State for Wales, I brought in the Government of Wales Act 2006, and I was instrumental in helping to win the 1997 Welsh referendum—albeit very narrowly; it was a hard fight. My concern is one that I do not see being addressed in the Bill, certainly not until we have the fiscal framework, at least, before us to scrutinise. It is this: 40% of the wealth of the United Kingdom is generated in London and the south-east. So what happens if parts of the UK—across the UK, not just in Wales and Scotland but in the north-east of England, Cornwall, and other parts of England that are not as wealthy as the south-east and London—are offloaded from the ability to benefit from redistribution, and the fairness involved in that redistribution?

The Government’s present ideology seems to be, “You have the powers to raise your own taxes, and it’s on your heads”. And if that particular part of the UK, be it Northern Ireland, Wales or Scotland, cannot raise what it previously raised, that is tough. I do not think that is a future for the United Kingdom that will command the support of all the nations and citizens of Britain and Northern Ireland. Therefore, although I cannot support the amendment of the noble Lord, Lord Forsyth, I want to leave on the record a severe reservation about where this is all leading.

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say a word or two about the fiscal framework, which I agree is fundamental. The difficulty of it cannot be underestimated. This is a situation in which an authority has a grant-making power, and a power to raise taxes in order to raise the money for that grant—but at the same time, it is making a grant to a body that has a power to raise taxes itself. We have had this problem in the United Kingdom for a long time in relation to local authorities. Nobody needs to be told that every year local authorities have difficulty in accepting what central Government allocate to them. The Scottish Government have had that problem too, with refusing to allow local authorities to use their tax-raising powers under the community charge.

This is a very difficult situation, and I am not at all confident that it is possible to arrange things in a way that will work for all time in this fiscal framework. There is an element of prophecy involved, as we can see from what has been said about the need to take account of how the Scottish population is ageing; of course I am very much part of that factor myself, and I am very conscious of it. The important thing is that there are various powers, and it is difficult to see that they could be effectively regulated for all time coming. I know of no country in the world that has a very satisfactory arrangement for local government. Germany, for example, has inter-state relationships, and relationships between the states and the federation. The United States has problems of that kind too. We have before us the same sort of problem, in a different context. This is a very difficult thing to do—and I do not believe that the powers can be granted without knowledge of what that power arrangement is going to be, if it is possible to reach it.

On the other hand, as the noble and learned Lord, Lord McCluskey, said, it would be a mistake for us to use the power of this House to get the Bill in place before the deadline for the parliamentary elections in Scotland. If we were to do that, I think it would be regarded as something that the House of Lords had done to destroy the vow.

[Lord Dunlop]

I thank all noble Lords who have taken part in the debate for their contributions. Before I address some of the points that have been raised, may I first make a correction? It came as something of a surprise to me to hear that I had not responded to the noble Lords, Lord Lang and Lord Hollick. I certainly signed lots of letters and I understand that those were sent off in early February, and copied to the leaders and Chief Whips of the main political parties and the Convener of the Cross-Bench Peers.