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

Lord Sentamu Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord for his address on “egregious”, and I do not disagree with the derivation of the term. It would be an abnormal situation to find ourselves in, and that is why I reiterate that it would be exceptional, unusual and unfortunate for us to proceed to make a political decision based on such an abnormality. The point I sought to make on the customs union is that in so far as we remain within it as a consequence of the backstop, if we ever did, it has clear deleterious impacts upon the European Union. We would, in a sense, be getting a free ride on the customs union so far as Great Britain is concerned, but not so far as Northern Ireland is concerned. But I do not anticipate that we are ever going to find ourselves within that backstop and, therefore, within that customs union.

[The Archbishop of York]

My Lords, I have had the chance to study the Attorney-General’s comments and I agree with the noble and learned Lord, Lord Mackay, that the Attorney-General is right. There will always be a legal risk and he would be wrong not to tell us that it remains. But that is the nature of risk. I am told that in Chinese the word “risk” is made up of two pictures—opportunity and danger. We have to look at the opportunities and then the danger, but not always concentrate on the danger.

For the likes of me, the pint is always half-full. For some, it is always half-empty. I thought that the worry about the backstop was that there was no timetable in which this matter might be resolved. December 2020 has been put into the agreement. There was also a worry that the United Kingdom might not be able to unilaterally withdraw from arrangements that did not help the rest of us. That has changed and is now reflected in the protocol. I agree with the noble Lord, Lord Thomas, that it is not lawyers who will resolve this but political will, which is the way in which we should proceed.

Having read the legal opinion, I am of the view that although what has been achieved by the Prime Minister does not take away the legal risk, the issue is more about what will happen in terms of agreements. In the end, do we believe as a nation that we are capable of achieving the best agreement in our interests and those of Europe? We have been good at negotiating protocols that have helped democratic institutions all over the world. This is a time to start believing that we should create a good agreement by 2020 and show good faith. If others do not do so, then the arbitration would come into being.

I want us to take the Chinese view; there is always danger in risk but this is the time for me to say to everybody: let us seize the opportunity and be reconciled on an issue that looks difficult. A time may come, friends, when although lawyers talk and talk—I am one of them—this issue should not be resolved by them but by politicians.

[Lord Keen of Elie]

I am obliged to the most reverend Primate the Archbishop of York. I agree with his observation that ultimately we are concerned with a political, not legal, decision. We have to remind ourselves that the withdrawal agreement is the means to an end, not the end in itself. Either we leave on 29 March without any deal in place, because the law has already determined that that is our exit date, or we can leave sensibly, with a withdrawal agreement that takes us into the realms of further negotiation for our future relationship. There is no reason to suppose that as a consequence of that further move we are ever going to find ourselves in the backstop, let alone considering how to come out of it.

Privately Financed Prisons

Lord Sentamu Excerpts

Wednesday 27th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, individual terms of contract make provision for appropriate facilities to be made available to those prisoners who are in private facilities. There is a system of management oversight by the Ministry with regard to the discharge of those obligations by private providers.

[The Archbishop of York]

My Lords, I began my ministry as a prison chaplain in a young offender institution, Latchmere House, where every day some 60 to 70 young men arrived. As a chaplain you had to see them, but sometimes you did not succeed in seeing them because the place was overcrowded. In those days, the prisons were put there by Her Majesty and run with taxpayers’ money. Is the Minister confident that this private finance partnership will not create the same indebtedness from which the National Health Service is suffering? We owe a lot of money to private companies for our new hospitals. Are we walking into the same trap?

[Lord Keen of Elie]

I thank the most reverend Primate for his question. Competition for custodial services in England and Wales is well established and has been in place since the early 1990s. On the funding of new prison facilities, there are now 14 privately operated prisons in England and Wales. Some of them have been funded by PFI, but not all. We consider that the mix of public and private financing has worked and does work.

European Union (Withdrawal) Bill

Lord Sentamu Excerpts

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

[The Archbishop of York]

My Lords—

[Lord Keen of Elie]

One moment. I am terribly sorry, Archbishop, but I must reply to that. This does not give England a veto. Essentially, England has no voice. This is the United Kingdom Parliament: it legislates for the United Kingdom.

[The Archbishop of York]

The point I was going to make is exactly the same. As I have listened to the debate, it seems to me that the issue is probably what the noble Lord, Lord Hennessy, tried to address. When we leave the EU, the state of the United Kingdom and Northern Ireland will still be the United Kingdom and Northern Ireland. Therefore, there are areas that are for all four nations and others that are just for one nation. Devolution was a good thing, but it does not mean that powers that affect other nations can simply be devolved. I have listened again and again, and I think the point is that, of all the powers that are coming back, 23 have been identified which, if they were simply handed over without clear legislation, would leave us in a real mess. There would be no coherence, no sense that this would be the United Kingdom; it would be something else. So may I plead with those who come from nations with devolved Governments to realise that, for the benefit of the whole of the United Kingdom and Northern Ireland, there are some areas that affect all of us together, not separately, and that those need to be retained? Of course there could be negotiations and conversations—but I get a little concerned that the message is not getting through. This is not grabbing power: some areas are returning to the United Kingdom and we must sort out which bits really need to go straight to the devolved Administrations. The 23 areas that we have heard about require very careful consideration; otherwise some might think that leaving the EU equals independence for them.

[Lord Keen of Elie]

I am not going to indulge in party politics at this stage; I do not think that that is necessary. We all know the ultimate objective of the Scottish National Party. It is not to have a United Kingdom; it is to break up the United Kingdom and have an independent Scotland. Although Scottish nationalists talk about all these powers coming back from the EU, let us remember that they do not want them. If they get them, they want to give them back to Brussels, because they want Scotland, as an independent country, to remain in the EU—and, if it leaves, they want it to join EFTA and the single market. Therefore they will return all the powers they are talking about if they get their ultimate aim.

European Union (Withdrawal) Bill

Lord Sentamu Excerpts

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

[Lord Farmer]

I thank the noble Baroness for her intervention. I believe it will be better in the long run. We have mentioned the Hague convention. There are many experts; Professor Paul Beaumont, for instance, is a leading expert, who has said at international conferences that in his opinion the Hague alternatives will be perfectly adequate and satisfactory on our leaving the EU.

Moreover, the amendment anticipates a report on steps taken to negotiate continued reciprocal arrangements—that is, effectively, continued membership of EU family law. This position has not been adopted in any other area of law, as far as I am aware, and is not supported by organisations such as the Law Society.

[The Archbishop of York]

I thank the noble Lord for giving way. He really needs to answer the question posed by the noble and learned Baroness, Lady Butler-Sloss. The Hague convention can of course go some way to help, but it is much weaker than the present reciprocal arrangements. It seems to me that it is no good to simply incorporate EU law that we then cannot reciprocate at all. What would be the point? What about, for example, extradition, where we have agreed with other countries that are not part of the EU to have the same arrangements? We have managed to do that for extradition and no sovereignty question has been raised—it is a question of process. Will the noble Lord explain how he thinks simply incorporating EU law into our laws is going to guarantee that British citizens who are in the EU and EU citizens who are in Britain are treated the same in matters of family law? How would that work?

[Lord Farmer]

I thank the most reverend Primate for his intervention. There is a requirement that our courts, as we heard earlier, would take regard of EU law. We were not being tied to precedent, but certainly—

Queen’s Speech

Lord Sentamu Excerpts

Wednesday 28th June 2017 Lords Chamber

[The Archbishop of York]

My Lords, I have followed with interest the debates on the Queen’s Speech over the past week. I have been encouraged to hear assurances from the Leader of your Lordships’ House and various Ministers of the Government who seek to govern with humility and to forge cross-party agreement where they can. That is as it should be, regardless of the numerical strength or weakness of the Government.

Many issues raised in the Queen’s Speech and the Government’s agenda give us the best opportunity to have that wider consensus. No area is more important than that when it comes to negotiating Britain’s departure from the European Union and to forging a new relationship—a deep and special partnership—with the EU. Indeed, the reality is that there is no way in which a minority Government can hope to get all their legislation relating to Britain leaving the EU through Parliament without the help of others. The Government need to make a virtue out of that necessity.

The challenge now is to negotiate a Brexit for the common good. How do we make Britain’s departure from the EU a good news story for the poor, the unemployed and those whose wages and living standards have been falling? That is no easy task. The Government’s most recent poverty figures showed that 14 million people live in poverty in the UK. Numbers started to rise last year, and research published by the Joseph Rowntree Trust projects that by 2020-21 there will be over 1 million more children in poverty than there are now.

The real incomes of the poorest tenth are set to be lower in 2020 than they are today, while those in the middle and at the top will see their incomes rise. With inflation rising, earnings growth weak and many tax credits and benefits frozen, life is set to get harder for those at the bottom over the next few years. It was therefore welcome news in the Queen’s Speech that the Government have promised to increase the national living wage,

“so that people who are on the lowest pay benefit from the same improvements in earnings as higher paid workers”.

My hope is that the increase will be up to what the Living Wage Commission, which I chaired, recommended. Playing catch-up is not good enough. I hope that the Government will take what was recommended. Many FT index companies are already paying that amount of the living wage.

Some hold that leaving the EU will only impoverish existing marginal and vulnerable communities further. These voices need to be heard rather than silenced. They need to be drawn into the debate as to the type of economic model that we need to encourage human flourishing post-Brexit and how that understanding should shape the Government’s negotiating strategy to leave the EU. Only by doing so will we be able to bridge the deep divisions exposed by the vote to leave the EU and the recent general election. It is evident that within government we need a more collegiate and consensual approach.

Beyond government, in the latter’s dealing with Parliament, the media and the electorate, the approach needs to be more transparent and more broadly based. Conducting the negotiations in a positive and constructive tone requires the Government to ditch once and for all the confrontational and threatening language that they have used since the referendum. Fiery slogans such as “No deal is better than a bad deal” might play well with Eurosceptics, but they do little to build the partnership between the UK and the EU that the Government have always said is their fundamental objective. “No deal is better than a bad deal”. Does that mean, for example, that we will cut all our diplomatic ties with the 27 remaining EU countries if we get a bad deal? Is that what it means?

To deliver the objective of partnership, the Government need to abandon fights over issues that are either marginal or where the UK has no hope at all of winning the argument. The dispute over the sequencing of the negotiations is a case in point. When the row of the summer becomes the row-back of the summer, the Government lose face and political capital. Disputes like this merely illustrate that the Government still need to understand the processes of Article 50. But all is not lost. It was encouraging to see the Prime Minister’s statement of 25 June that she wanted,

“all those EU citizens who are in the UK, who’ve made their lives and homes in our country, to know that no one will have to leave. We won’t be seeing families split apart. People will be able to go on their living their lives as before”.

The proposals are a good start, but this is one of the thorniest issues to be resolved in the negotiations and the devil will be in the detail. I therefore humbly encourage the Government to take a broad and opened-minded attitude to this matter. The simplest solution would be to codify clearly and comprehensively the rights of EU citizens in British law and to take March 2019 as the cut-off period. Going forward, the motivation of both sides should be good will, justice, compassion and the rule of law.

What would help the Brexit negotiations more than anything else is a greater degree of realism. I have every confidence that the Government will reach agreement within the timescale set by Article 50, but we need to recalibrate expectations that a new relationship with the EU can be negotiated by March 2019. Most experts hold that it is unlikely to be completed and ratified this side of 2025. This is where we need a cross-party commission, maybe even a royal commission akin to the Privy Council, to look creatively at the possible options and to offer impartial but honest advice to the Government on the best transitionary and final arrangements. Its size should not be too large. As Queen Elizabeth I said in her speech on her accession to the throne:

“a multitude doth make rather disorder and confusion than good counsel”.

She shrank her Privy Council from 30 to 10. I am certainly not looking for a place on such a body, but I suggest that keeping the UK in the single market and the customs union until the end of the transitional period when any new relationship with the EU comes into force may help us. I recognise that this is not unproblematic, but looking to use membership of the EEA, as the noble and learned Lord has just suggested, could be a stepping stone to a still unknown destination and would give both sides not a cliff hanger but a gentler slope.

The outcome of the general election offers the United Kingdom and Northern Ireland an opportunity for a fresh start, not to turn our backs on leaving the EU but rather to learn the lessons of the last year and deliver and manage our leaving the EU in a way that provides for the long-term flourishing of this country.