Rule of Law: Law Officers

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

I hope that the noble and learned Lord has not become unwell in view of the noises emanating from him—but, if he has, I wish him well for the future.

Let us be clear that we are in a situation where we have rights under an international treaty. Those rights include our response to any breach of obligations by the counterparty, be that a lack of good faith or such action as would fundamentally alter the obligations under the treaty, giving rise to a position—under Article 62 of the Vienna Convention—where we could withhold our operation of the treaty.

It has been suggested to me by no less a legal authority than the noble and learned Lord, Lord Falconer of Thoroton, that we can simply rely on Article 16. This has immense novelty value. The idea the Executive can enter into a treaty at the level of international law and then rely on that to displace primary legislation passed by the domestic Parliament is, I respectfully suggest, extraordinary. That requires these mechanisms in the UKIM Bill to address the contingency of a material breach that we need to address.

[Lord Thomas of Gresford (LD) [V]]

My Lords, the noble and learned Lord told the Scottish Public Law Group in Edinburgh in June 2018:

“If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively—any government is simply shooting itself in the foot if it undermines the rule of law.”


The contingent powers in this Bill to change the Northern Ireland protocol unilaterally trash the dispute resolution provisions in the treaty that Boris Johnson signed, and on any sensible reading undermine the rule of law, as Brandon Lewis candidly acknowledged. Will the Minister acknowledge that for him to promote their use by introducing a statutory instrument under these provisions in this House would violate his overarching duty under the Ministerial Code to comply with the law, including international law and treaty obligations, as the Court of Appeal found and as the noble and learned Lord is reported by the Guardian correctly to have advised the Prime Minister? Does he acknowledge that it would also violate the law officer’s oath that he took as Advocate-General of Scotland, and would be a gross dereliction of his duty?

Rape: Prosecutions and Convictions

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 14th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

My Lords, there has been no material change to the CPS’s approach. The evidential stage of the code test remains as it was, despite some suggestions to the contrary. Indeed, the most recent inspectorate report, in 2019, observed that the code test was being applied correctly in 98% of cases. But I acknowledge that we face challenges in this area, and we are seeking to address them, as I say, by way of a joint inspectorate examination of the issue and a cross-government review of how we can improve matters.

[Lord Thomas of Gresford (LD) [V]]

First, the need for corroboration in rape cases was abolished; secondly, sentences were increased to a five-year minimum guideline; and then inquiries into the complainant’s character were forbidden. Then the defendant was barred from cross-examining in person, and video links kept the complainant out of the witness box. Recently, there was an exhortation that complainants are, prima facie, to be believed. Despite all this, conviction rates have fallen. Does the Minister agree that further reform should be evidence-based? Will the Ministry of Justice permit academics to look exceptionally into the way that real-life juries have reached their verdicts, whether guilty or not guilty, in a limited number of rape cases?

[Lord Keen of Elie (Con) [V]]

My Lords, the issue of engaging with juries about how they arrived at their verdicts is complex and difficult. To set a precedent there would be a material step. However, we recognise that it is necessary to address some of the ingrained misconceptions that still exist and persist around reporting these offences. We hope that, by doing that, we will improve outcomes overall.

Rule of Law

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Thursday 10th September 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

Has a certificate such as the noble and learned Lord referred to a moment ago been given in relation to this Bill, suggesting that it does not comply with international obligations?

The Prime Minister persuaded the Queen to prorogue Parliament unlawfully a year ago, his chief adviser Cummings unlawfully broke the law on his Barnard Castle jaunt, and now the Prime Minister will ask the Queen to give her Royal Assent to what is effectively an unlawful Bill that quite deliberately breaks international law. The Tory shadow Counsel General in Wales, the highly respected David Melding, resigned yesterday, and the head of the Government’s legal service resigned two days ago. Having regard to the oaths of office to uphold the rule of law, why are the Lord Chancellor and the Attorney-General still in office, even if the noble and learned Lord himself clings to it?

[Lord Keen of Elie (Con) [V]]

My Lords, first of all, the Minister presenting this Bill has given a certificate of compatibility pursuant to the Human Rights Act; that has been done.

As regards the further issues raised, it will be for Parliament to determine whether, at the end of the day, it decides to pass this legislation. That is a matter for Parliament, and the Ministers have presented the Bill to Parliament for those purposes.

Royal Commission on Criminal Justice

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Wednesday 15th July 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, we are looking at all the matters addressed by the noble Baroness and we have taken steps to open additional courts across the country. We continue with that endeavour to address the backlog of cases that has emerged since the pandemic.

[Lord Thomas of Gresford (LD) [V]]

My Lords, I am aware that soundings have been taken as to the introduction of smaller juries in criminal cases. Whether this is to deal with the pandemic or the backlog of trials, or is for the long term, is it not precisely the sort of issue which a royal commission should discuss publicly and openly before a decision is made?

Prisoners (Disclosure of Information About Victims) Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 1st July 2020 Lords Chamber

[Lord Keen of Elie]

I thank all noble Lords for their contributions to this debate. The Government remain of the view that these amendments would place too much emphasis on findings of mental capacity at a Newton hearing, particularly the findings made for the purposes of sentence.

In sentencing an offender, it is for the court to consider the punitive element of an offender’s sentence and, in doing so, to take into account the failure to disclose information in setting the tariff. By reflecting this in the sentencing remarks, victims can be assured that due consideration has been given to the non-disclosure. Tariffs must be served in their entirety and irrespective of any disclosure of information after a trial, so the tariff cannot be reduced because of subsequent disclosures. This is an entirely sensible approach, as I believe the noble Lord, Lord Thomas of Gresford, acknowledged when we discussed this matter in Committee. The trial judge is more able to determine the appropriate weighting with regard to non-disclosure when setting the tariff.

On the other hand, the Parole Board’s role is in relation to the preventive element of the sentence. The consideration that the Parole Board must make is whether there should be a continuation of custody or a release on licence if the offender’s risk can be safely managed in the community. The Bill places a statutory duty on the board, when making that wider assessment, to consider the non-disclosure of information by an offender and the possible reasons for it. The board will take a subjective view of what those reasons might be, and what bearing this information may have on the subsequent assessment of suitability for release. When it comes to consider these matters, it must of course take account of the judge’s sentencing remarks. Those, in turn, will be informed by such issues as non-disclosure. I am obliged to the noble and learned Lord, Lord Thomas of Cwmgiedd, for his detailed analysis of how the court approaches these matters in practice and why, in the context of the Bill, it would not be appropriate to simply import the notion of the Newton hearing for the purposes of the Parole Board’s determination.

The noble Lord, Lord Thomas of Gresford, has correctly identified that a prisoner’s mental state may be a significant reason for non-disclosure—a point made earlier by the noble Baroness, Lady Bull, when she spoke to her own amendments. But to limit this to the specific context of a Newton hearing, and to place that in the Bill, appears to us to be too narrow an approach. The Parole Board should be free to consider all reasons, including those that may arise as a result of a Newton hearing—unusual though they may be—and we should therefore avoid any specific delineation in the Bill.

As new subsection (3) in Clause 1 makes clear, the breadth of matters which the board may take into account is, essentially, as wide as possible. In addition, the board is bound by public law principles to act reasonably in all decisions, so a decision where a relevant Newton hearing or an issue of mental capacity was not taken into account could be subject to judicial review. I venture that this is not the Bill in which to approach the whole issue of sentencing guidelines or findings of fact for the purposes of those guidelines. That is already accommodated, and it is in these circumstances that I invite the noble Lord to withdraw his amendment.

[Lord Thomas of Gresford [V]]

My Lords, it is clear that the noble and learned Lord, Lord Mackay, does not like the system of Newton hearings, but the fact that the defendant has refused to disclose is not necessarily part of the offence. The reasons for his refusal to disclose the whereabouts of a body, or the identity of a child involved in indecent images, may not emerge in the course of a trial and may not be discussed before the jury. A jury listening to a case may not investigate the mental capacity of the defendant before them. If that is not an issue in the trial, examined on both sides, then the judge would have difficulty in forming a view of his own without hearing evidence.

The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to the basis of plea as being the more usual way in which these matters are sorted out. I am completely familiar with the formation of the basis of plea, and the arguments that go on as to whether an agreement can be reached between the defence and the prosecution. However, if a person pleads guilty to murder or manslaughter and there is no trial, and there is a disagreement between prosecution and defence, how is the judge to come to a conclusion as to the degree to which the refusal to identify where a body is buried is to be part of his sentencing process—that it is an aggravating factor which he is to take into account? He has not heard any witnesses. He has just heard that the counsel disagree on what the basis of a plea would be.

Royal Commission on Criminal Justice

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Wednesday 3rd June 2020 Lords Chamber

[Lord Keen of Elie]

Along with the judiciary, we seek to utilise all the court capacity currently available to us by developing the use of remote hearings. We are also addressing how we can best accommodate jury trials within court accommodation. We will continue to monitor that to see where it can be improved and developed.

[Lord Thomas of Gresford (LD)]

Will the Minister consider recommending to the commission a consideration of the escalating length of sentences, which have probably doubled during my career, and of the impact upon rehabilitation and reoffending?

[Lord Keen of Elie]

The manifesto commitment was that the royal commission would address prosecution, trial, sentence and parole, and I have no doubt that within that it will give consideration to the length of sentences and the need for rehabilitation.

Prisoners (Disclosure of Information About Victims) Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 20th May 2020 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I am very grateful to the Minister for his reply, but I think it is necessary to distinguish where there has been a plea of guilty and where there has been a plea of not guilty in a trial. Very often, when a person pleads guilty, he will, with the assistance of his legal team, put together a basis of plea, which is handed to the prosecution for consideration. If it accepts the basis of plea, there is no problem but, if there is an issue, a Newton hearing will be held to determine whether the prosecution which refuses to accept the basis of plea is correct or whether the defendant who is pleading guilty is correct. The judge will sentence accordingly.

That is one situation. Another is after a trial, when there has been a finding of guilt. Let us take a circumstance where a group of people have attacked an individual and one of the group says, “I didn’t take part”—indeed, I remember a case where precisely that happened; the defence was, “I was trying to discourage them so they’d go away”—but, at the end of the trial, the defendant is found guilty. At that point, the judge says, “I will sentence you on the basis that you are withholding information as to where the body was buried.” The defendant could then say, “I’ve been found guilty, but the others took the body away and I want to be heard on that, because I don’t know where they went and where the body was ultimately buried. You cannot sentence me on the basis of the facts the jury has found—that I was a party to a killing—when I don’t know where the body went.” That situation does not involve mental incapacity at all and such a situation should be investigated at the time and not 15 or 20 years later by the Parole Board doing its best, unassisted by medical evidence because it would not arise. It seems to me that issues of that nature should be determined prior to sentencing for the actual offence, whether there is a plea of guilty or a finding of guilt. That should involve a hearing of the sort that I have proposed.

Obviously, my amendment does not require the Parole Board to order a hearing. As the Minister anticipated, my purpose is to encourage the holding of Newton hearings where necessary. I do not believe that they are quite as rare or unusual as he suggests. In this particular instance, with proper directions being given generally to judges to hold Newton hearings where appropriate, they would be useful and helpful to the board’s ultimate determination. They would be of great significance concerning culpability.

[Lord Keen of Elie]

My Lords, I accept what the noble Lord, Lord Thomas, has observed. In cases of this kind, the judge will wish to take into account the disclosure or non-disclosure of the whereabouts of a victim and the circumstances in which the offender can or cannot make that disclosure. There may be circumstances in which that might necessitate a Newton hearing, and so be it. That would be done contemporaneously with the determination of the tariff in the sentence. When later on we get to the preventive element after the tariff has been served, the Parole Board will be able to call for all that material, whether it be a Newton hearing or otherwise.

I hear what the noble Lord, Lord Thomas, has to say about the importance of determining these issues at the time of trial and sentence; I do not disagree with him at all. It may be that some element of encouragement will be given if it is required, although I take from the observations of the former Lord Chief Justice—the noble and learned Lord, Lord Thomas—that there may be little requirement to encourage in a matter that is dealt with in this way day in and day out.

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

Debate between Lord Thomas of Gresford and Lord Keen of Elie

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

[Lord Thomas of Gresford (LD)]

My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said:

“The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power.”


The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state:

“PIL agreements cover a discrete area of law that is narrowly defined.”


One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used.

For example, the definition clause for “international agreement”, which Amendment 9 deals with, includes,

“an agreement to which the UK is, or is expected to become, a party.”

What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party.

The definition of “private international law” is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes “rules and other provisions”, and there is to be co-operation in relation to the

“service of documents, taking of evidence and other procedures”

not defined. Paragraph (c)(ii) deals with

“anything within paragraphs (a) and (b).”

It is so loose and ill-defined.

So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that.

I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws.

But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?

[Lord Keen of Elie]

My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.

Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.

The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.

Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.

In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.

Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.

Legal Services Act 2007 (Approved Regulator) Order 2020

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 9th March 2020 Grand Committee

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

My Lords, I venture to suggest that this order is straightforward and uncontroversial. It designates the Institute of Chartered Accountants in England and Wales—for ease, I will refer to it the institute—as an approved regulator under the Legal Services Act 2007 for the reserved legal activity of the administration of oaths.

In summary, the order, if approved, will allow the institute to authorise and regulate individuals and firms administrating oaths within the scope of the Commissioners for Oaths Act 1889, the Commissioners for Oaths Act 1891 and the Stamp Duties Management Act 1891.

As the Committee is aware, the Legal Services 2007 Act defines six reserved legal activities, which only individuals and firms regulated by one of the 11 approved legal regulators can provide to the public. The administration of oaths is one of these activities.

The institute is already an approved regulator and licensing authority under the 2007 Act, but only in respect of probate activities, which is also a reserved legal activity. It regulates more than 300 firms providing probate services and wishes to expand the range of legal services its members can provide. As such, it made the required application to the Legal Services Board, seeking to expand its functions. Following a recommendation from the Legal Services Board, the then Lord Chancellor confirmed in May 2019 that he agreed to make an order to designate the institute as an approved regulator for the reserved legal activity of the administration of oaths. It is envisaged that expanding the institute’s remit will improve consumer choice, enhance competition and enable firms who are regulated by the institute to expand their practice.

This order fulfils the statutory objectives in the Legal Services Act 2007 and is supportive of better regulation in the consumer and public interest. I commend the draft order to the Committee.

[Lord Thomas of Gresford (LD)]

My Lords, as the noble and learned Lord, Lord Keen, has just pointed out, this is uncontroversial. I have no objection to it. It took me back to my years as an articled clerk in the late 1950s and early 1960s when the perk that one had was to take clients to another solicitor who would administer an oath on probate papers. This would cost the individual 10 guineas, and the shillings in those guineas were for me. There were only 10 shillings, but at a time when I was earning £4 a week, which was extended to £5 a week when I got married, that was quite a considerable sum.

Legal Services Act 2007 (Chartered Institute of Legal Executives) (Appeals from Licensing Authority Decisions) Order 2020

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 9th March 2020 Grand Committee

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

My Lords, I venture that this is also a straightforward and, I hope, uncontroversial measure. The order relates to the functions of the Chartered Institute of Legal Executives which, for ease, I will refer to as CILEx. In summary, the order—if approved—enables the First-tier Tribunal to hear and determine appeals against CILEx in its role as a licensing authority.

As the Committee is aware, the Legal Services Act 2007 defines six reserved legal activities that only individuals and firms regulated by one of the approved regulators can provide to the public. CILEx is an experienced regulator under the 2007 Act and authorises and regulates individuals and firms in respect of five of the six reserved legal activities: the conduct of litigation, rights of audience, reserved instrument activities, probate activities and the administration of oaths. In February last year, an order designated CILEx as a licensing authority as well as an approved regulator. This meant that, as well as regulating individuals and firms, it can now license alternative business structures. ABSs are legal firms that are partly or wholly owned or controlled by non-lawyers. They were introduced by the 2007 Act to encourage competition by allowing, for the first time, lawyers to join with non-lawyers, for example accountants, to raise external capital. Notable ABSs include Co-op Legal Services and the big four accountancy firms.

ABSs have been permitted by the Legal Services Act 2007 since October 2011, and there are now over 1,300 in England and Wales. Most of the other legal services regulators, including the Law Society and the Bar Council, are already licensing authorities. The 2007 Act stipulates that there must be an independent body to determine appeals against decisions of licensing authorities, and this order enables the General Regulatory Chamber of the First-tier Tribunal to fulfil this role.

Over the last 12 months, since CILEx became a licensing authority, there has been an interim appeals procedure—agreed by the Legal Services Board—in place. However, it is more appropriate that the First-tier Tribunal determines any appeals against CILEx in its role as a licensing authority. The First-tier Tribunal has judges with experience in considering regulatory appeals.

Furthermore, similar orders have been made in the past in respect of appeals against decisions of the Bar Standards Board, the Council for Licensed Conveyancers, the Chartered Institute of Patent Attorneys, the Chartered Institute of Trade Mark Attorneys and the Institute of Chartered Accountants in England and Wales, when they are each designated as licensing authorities.

I assure the Committee that, although Her Majesty’s Courts & Tribunals Service will face additional costs associated with the potential increase in cases to be determined by the First-tier Tribunal, CILEx will meet the set-up and operating costs, so there will be no net financial impact on the public sector.

In conclusion, this statutory instrument is necessary to regulate better in the consumer and public interest. I commend the draft order to the Committee.

[Lord Thomas of Gresford (LD)]

My Lords, I support the order. I declare an interest in that a close family member is a judge in the First-tier Tribunal—but not, I believe, in the General Regulatory Chamber.

I have been a strong supporter of CILEx from its inception. Indeed, I addressed some of its early conferences due to, as I mentioned in relation to the previous order, my experience 50 years ago of the integrity and probity of legal executives who needed a body to represent their interests in the way that that has happened. I am delighted to see that it has been given this particular power. The strange thing is that there was a temporary appeals provision with a panel set up by CILEx itself; clearly that was unsatisfactory. Far better that it should go through the tribunals system. What are the fees of the tribunal likely to be? Will they be more expensive than the present appeals system, unsatisfactory as it is?

Brexit: Powers of EU-UK Joint Committee

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Wednesday 20th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the UK and the EU are obliged to implement the joint committee’s decisions, which will, under Article 166, have the same legal effect as the agreement itself—but there will be no ratification of any decisions taken by the joint committee, obviously. In the absence of any agreement on an issue by the joint committee, under Article 170, the issue will then be referred to the arbitration panel, whose decision will be final and binding. Again, it will not go back to Parliament for discussion. What control, if any, does the House of Commons have over the joint committee’s decisions?

[Lord Keen of Elie]

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

--- Later in debate ---

[Lord Keen of Elie]

My Lords, United Kingdom Ministers always speak with one voice.

[Lord Thomas of Gresford]

The Minister said that there will not be two civil servants and we hear that there might be Ministers. Who will be the UK’s representatives on the joint committee, and how will they attain a mandate from the House of Commons—one which those negotiating recently most clearly did not have?

[Lord Keen of Elie]

My Lords, the final constitution of the joint committee has not yet been agreed. It will be addressed once exit has taken place. However, those who represent the United Kingdom on the joint committee, be they Ministers or others, will carry with them a mandate. They will be answerable to Parliament for the decisions made by the joint committee and the joint committee cannot implement decisions unless they are agreed to by both parties.

Services of Lawyers and Lawyer’s Practice (Amendment) (EU Exit) Regulations 2019

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 18th March 2019 Lords Chamber

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

My Lords, this draft amending instrument forms part of our ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively. Your Lordships will be aware that, in preparation for leaving the EU, the Government have signed a UK-Switzerland citizens’ rights agreement, as they have done with the EEA states that are outside the EU. This instrument will modify the way in which relevant retained EU law is revoked in order to retain regulatory provisions for those in scope of the UK-Switzerland citizens’ rights agreement if a withdrawal agreement with the EU is not agreed and implemented before the UK’s exit from the EU. This draft instrument makes changes to the relevant legislation in England and Wales and in Northern Ireland. Scotland is legislating separately with the same policy intention.

Noble Lords will be aware that the UK, as an EU member state, is required to implement two European directives for legal services which are extended to Swiss nationals under the EU-Switzerland free movement of persons agreement. As part of preparations to leave the EU, the Government laid a statutory instrument to amend the domestic legislation implementing these two directives. The original statutory instrument revokes the relevant provisions in the event that the UK leaves the EU without a deal.

This draft instrument amends the way in which the domestic legislation is revoked, retaining some provisions for Swiss lawyers and those in scope of the UK-Switzerland citizens’ rights agreement. This is to ensure that retained EU law operates effectively in the event that the UK leaves the EU without a deal, and that deficiencies in retained EU law are remedied in a way that reflects our agreement with Switzerland.

The UK-Switzerland citizens’ rights agreement grandfathers recognition and establishment rights for UK and Swiss lawyers, provided that they have transferred into a legal profession of the other state before exit day. It also protects the rights of UK and Swiss lawyers who are established, registered and providing services under their home title. So long as they remain registered, they will be able to continue to provide services as they do now. It also provides a transition period of four years for lawyers to register as registered European lawyers or to transfer into a legal profession of the other state under these arrangements. These arrangements include citizens who have started but not finished studying for professional legal qualifications.

Finally, it allows lawyers and law firms to continue to provide up to 90 days’ temporary services a year for at least five years, where a contract to provide such services was agreed and started before exit. Swiss lawyers will also be able to apply within four years of exit day to join an English and Welsh or Northern Irish profession on the basis of three years’ qualifying experience as a registered European lawyer, in addition to routes available to foreign-qualified lawyers. For Swiss lawyers and law firms with interests in the UK, this instrument will bring legal certainty. It will effectively implement in domestic law the obligations that we have undertaken at the level of international law pursuant to the UK-Switzerland citizens’ rights agreement, which is why it is necessary to bring forward this instrument at this time. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the Ministry of Justice team on producing an impact assessment which would meet the deepest desires of the noble Lords, Lord Adonis and Lord Foulkes. It is excellent. It fully covers the material and, combined with the evidence base, must have involved a great deal of work. The tragedy is that it refers only to 10 Swiss lawyers in this country—and not only that but it has no effect unless we leave the EU without a deal, which looks increasingly unlikely, having regard to the Motions passed in the House below. However, in itself this instrument contains nothing objectionable.

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

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 12th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I do not propose to repeat the speech I made yesterday, in which I suggested that it was inappropriate for lawyers to determine an issue as important as whether the backstop had run its course. I am very pleased that in the conclusion to his Statement today, the Attorney-General emphasised that matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. As it is a political decision, it is really not right to ask lawyers to determine whether a state is acting in bad faith, as the noble and learned Lord said a moment ago. I commend the Attorney-General for sticking firmly to the opinion that he first gave and not being shifted, despite the enormous pressure I have no doubt he is under.

An aggrieved party under this instrument would have to persuade the arbitrators to prove—as the noble and learned Lord, Lord Goldsmith, said—that the other party had failed the best endeavours test with the objective of applying the backstop indefinitely. Further, he would have to prove that there had been a persistent failure or a systematic refusal to consider the other side’s proposals. Only if the arbitrators found in the aggrieved party’s favour would they be able to use temporary measures to suspend the backstop—and I emphasise the word “temporary”. The other party could cure the problem at will at any time by taking the necessary measures to comply with the ruling.

My first question to the Minister, therefore, is this: what does he envisage to be temporary measures? What does that mean? Clearly, it would not be a permanent unilateral withdrawal from the backstop. What would happen at the Northern Ireland border to the free passage of goods if temporary measures were taken? Would it be a smuggler’s free for all or a clamping down?

The Attorney-General originally advised that it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for a breach of good faith and best endeavours because of the difficulties of proof and the egregious nature of the conduct, which would have to be established. I remind your Lordships that according to the Oxford English Dictionary, the word “egregious”, which the Attorney-General in typical fashion rolled off his tongue, means “shocking”. Is it now then all about timetables? That is all that the instrument appears to lay down. I listened to the Attorney-General talking in the other place about time being of the essence. To every lawyer, that phrase means that if the timetable is not adhered to, the whole agreement is defunct. The United Kingdom negotiators have not shown themselves to be particularly conscious of time over the past two and a half years. Will a breach of the timetable on either side now amount to egregious, shocking conduct, sufficient to trigger the dispute settlement arbitration procedures?

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords for their contributions. Referring to the observations of the noble and learned Lord, Lord Goldsmith, I will perhaps begin where he finished. If the noble and learned Lord was to revisit his study of early Italian Renaissance sculpture, he might be reminded that the fig leaf can cover some very important bits. Therefore, one must bear in mind that the use of analogies is not always entirely helpful.

In paragraph 19 of his opinion, the Attorney-General set out his view that the legal remains unchanged. But that was not the question that was being addressed. The issue that exercised people was one of an extreme nature, which one would, frankly, never anticipate arising where parties have entered into an international treaty in good faith and intend to discharge their obligations under that treaty in good faith. As I observed in a previous debate, if you simply do not trust the person with whom you are contracting or entering into a treaty, there is little point in doing so—you would not proceed in the belief that they would ever finally discharge their obligations. Here, however, we proceed in the confident belief that their obligations will be addressed and met.

It is therefore important that, in the context of the further agreement, the parties have fixed a date of December 2020 by which to use their best endeavours to arrive at an alternative to the backstop. It is in these circumstances that it is considered appropriate, as the Attorney-General observed in paragraph 7 of his opinion, to note that the provisions now represent materially new legal obligations and commitments which mean that unconscionable behaviour on the part of the EU, and failure to fulfil its obligation to seek suitable and alternative practical means of dealing with the backstop, would have to be properly addressed in the context of the arbitration provisions.

It is in that context that I come to address the questions posed by the noble and learned Lord, which touch upon each other. He began by asking how, if there is bad faith by the European Union, we would prove it. There are circumstances in which it would become apparent that the European Union was intent upon seeking to trap the United Kingdom in the backstop, notwithstanding the provision of alternative arrangements. But let us be clear: one does not anticipate or foresee that that would ever occur.

On that point, I note that the backstop has significant drawbacks for the European Union, just as it has significant drawbacks for the United Kingdom. If it were ever to emerge, the backstop would result in Great Britain enjoying the benefits of a customs union and paying nothing for that. The relevant payment in respect of the customs union would come from trade in Northern Ireland, not in Great Britain. Let us remember that there is very little in this that benefits the European Union, let alone the United Kingdom.

If we were, however, to find ourselves in a situation in which there was shocking or egregious conduct on the part of the European Union, the arbitration measure would be available. In finding that there was a breach, the arbitrators would be entitled to grant temporary measures. That would include a temporary suspension of the operation of the relevant backstop provisions with regard to the border.

The noble Lord, Lord Thomas, asked, quite rightly, what would happen at the border. One answer is that we would find ourselves in that situation only where the European Union had not been prepared to engage with coherent, sensible proposals put forward by the United Kingdom to deal with the border and ensure that it could remain entirely open. If a suspension was ordered by the arbitrators, it would then be open to the United Kingdom to implement those proposals unilaterally at the border in order to deal with the issue. If thereafter—in utterly extreme circumstances—the European Union was to persist in refusing to engage with the temporary suspension of the protocol, the arbitrators would eventually come to the conclusion, quite rightly, that the protocol was simply not required; that it was no longer “necessary” because the alternative arrangements during the suspension had clearly worked to the satisfaction of the European Union, which had done nothing in the meantime. Again, I stress that we are talking about the most extreme of circumstances. I do not contemplate that, politically, anyone will go there.

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

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 15th January 2019 Lords Chamber

[Lord Keen of Elie]

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

[Lord Thomas of Gresford (LD)]

I congratulate the Minister on his timing. This is part of the no-deal preparations along with the fake travel jam, the lorry jam in Dover and the hiring of ferries with no ships, but it is a bit late now, with about half an hour to go to the vote, to frighten the horses any further. It is extraordinary that parliamentary time should be spent in debating a statutory instrument of this nature. It is applicable only if the UK leaves the EU without reaching an agreement. The effect of that is to throw the United Kingdom on to World Trade Organization rules for general agreement on trade and services.

If that were to happen, the most-favoured-nation rules would come into operation prohibiting preferential treatment of any signatory state above another. The whole purpose of this statutory instrument, therefore, is to reduce EU and EFTA lawyers currently practising in this country to the level of the lawyers of third-party countries from around the world whose rights to practise and establish in England, Wales and Northern Ireland, absent a trade deal, are absolutely minimal, if they exist at all. As the noble and learned Lord said, this SI affects about 700 lawyers currently registered with the Solicitors Regulation Authority, 17 registered with the Bar Standards Board and some five EU lawyers registered in Northern Ireland. The other side of the coin, however, which would be of concern to the legal profession, is that the EU will obviously seek reciprocally to reduce the rights of United Kingdom lawyers practising in the EU to those WTO rights.

One of the most important differences between the WTO regime and the existing EU framework is the practice areas in which foreign lawyers are allowed to provide services in Europe. While the directives allow EU, EEA and Swiss lawyers to practise host member state law, including EU law, it is not possible under the current GATT schedule for commitments of the EU, which limits third-country lawyers to providing legal advice in home-country law and public international law, to practise in EC law.

While it is possible in theory for individual member states to grant higher levels of access to foreign lawyers, in practice most member states have not gone beyond these GATT commitments. It follows, therefore, that British lawyers will lose a number of significant rights: rights to provide legal advice on EU law; the right to requalify in host member states; and rights of audience in domestic and European courts. Further, according to the settled case law of the CJEU, lawyers from third countries practising in Europe cannot claim legal professional privilege to protect their clients’ interests. Legal professional privilege is not available to them.

It is not surprising, then, that in 2016 the Law Society of Ireland received nearly 1,400 applications from practitioners to requalify in Ireland. Those were British lawyers, mostly from antitrust, competition or trade law practitioners, based in London or Brussels. Last week the Irish Taoiseach specifically said that they were looking at Ireland taking business in legal services away from the United Kingdom. This statutory instrument, therefore, risks unnecessary conflict with the EU legal profession. There will be no reciprocity. Even if there were a no-deal withdrawal from Europe, surely there would have to be an agreement to retain an open market for legal services allowing mutual rights to practise across the borders. You will see no trace of that in the political statement that accompanies the withdrawal agreement. As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out last week, we are in a competitive position. Commercial courts where the proceedings are conducted entirely in English have opened up already in Paris and Amsterdam. The noble and learned Lord said that they are being actively promoted as a much better alternative to the United Kingdom because their judgments will be recognised and enforceable across the EU and because of the certainty of their position.

If the EU does unto us what we are doing to it by this statutory instrument, British lawyers will have no rights of audience in these new English-speaking courts. That is a most curious result. Instead of spending time abolishing the rights of European lawyers to practise in this country, the Government might spend time in negotiating mutual rights to practise to replicate the current position. There is nothing, as I have said, in the political declaration that points to such negotiations. I ask the noble and learned Lord: where are we? Have there been any talks on this issue?

Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 15th January 2019 Lords Chamber

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

My Lords, as I indicated a moment ago, the Government published a technical notice on a number of areas which anticipated the possibility of our leaving the EU without any form of withdrawal agreement. On 13 September 2018, we published a technical notice which set out arrangements for civil legal aid cases, including arrangements in relation to the EU legal aid directive 2003, which I will refer to as the EU legal aid directive. The regulations we are discussing today will allow us to implement these arrangements and make other necessary amendments to the legal aid framework in England and Wales and Northern Ireland. These draft regulations will provide clarity for lawyers and citizens in the event of a no-deal outcome. As I indicated, that is not what we hope for, seek or wish to have as our destination. I emphasise that this will deal with the matter in England and Wales and in Northern Ireland. It is a matter of devolved competence in Scotland. The Scottish Government will address it as they see fit.

If we were to leave the European Union without a withdrawal agreement, the current reciprocal arrangements under the EU legal aid directive would be lost. The EU legal aid directive sets out rules relating to legal aid in EU member states, other than Denmark, to ensure adequate access to justice in cross-border disputes. Its application is limited to civil and commercial matters. It only applies to cross-border disputes which are, very broadly, disputes where an individual who is domiciled or habitually resident in an EU member state requires legal services in relation to proceedings or to enforcement of a decision or authentic instrument in another member state.

In a no-deal scenario, we are seeking to ensure that legal aid provision—for matters within the scope of the EU legal aid directive but not otherwise within the scope of legal aid—is not made to individuals domiciled or habitually resident in an EU member state on a unilateral basis where there is no longer reciprocity from the EU member state.

The instrument also makes technical amendments to ensure that the legal aid legislation in England and Wales and Northern Ireland operates effectively following EU exit and makes changes to procedural requirements for legal aid applications in England and Wales. It amends the civil legal aid framework in England, Wales and Northern Ireland to remove the legislation implementing the EU legal aid directive, which will no longer apply to the United Kingdom.

Individuals who are domiciled or habitually resident in the EU member state who require legal services in relation to proceedings in England and Wales or Northern Ireland or who wish to enforce a decision will be subject to the same scope, means and merits requirements as those who are domiciled or habitually resident in England and Wales or third countries—in other words, it brings everyone on to a level playing field. Legal aid provision for those domiciled or resident in the UK participating in proceedings in EU member states will fall to each member state’s particular legal aid framework—again, we cannot legislate for those states.

Repealing the legislation implementing the EU legal aid directive will ensure legal certainty and clarity regarding legal aid entitlement. In addition, we avoid a unilateral arrangement where those domiciled or habitually resident in EU member states are treated more favourably than those domiciled or habitually resident in the United Kingdom.

If I may, I shall explain the technical amendments made by the instrument. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Access to Justice Order 2003 require the provision of legal aid for exceptional cases not normally within the scope of legal aid where not to do so would be a breach of enforceable EU rights. LASPO also provides that the Lord Chancellor may make an order specifying circumstances where foreign legal advice may be provided when not to do so would, again, be a breach of enforceable EU rights.

The references in LASPO and the 2003 order will be amended to “retained enforceable EU rights”, because of course, pursuant to the 2018 Act, in our domestic law we will have retained enforceable EU rights, but we will not have EU rights. The terms will be defined with reference to the 2018 Act, as I said. That will enable the proper functioning of the exceptional case funding frameworks in England and Wales and, under LASPO, for the provision of foreign legal advice.

As to the procedural amendments, controlled work, which is referred to in the instrument, is a categorisation of legal aid work covering certain advice where the power to determine legal aid entitlement is generally delegated to legal aid providers—for example, initial advice and assistance. At present, it is not necessary for an individual seeking legal aid for controlled work in England and Wales to attend a legal provider’s premises in person where they are present or reside in the EU. Such an individual can authorise someone to attend on their behalf.

The draft instrument changes the exception to apply to those present or resident in the United Kingdom, and these changes will allow the benefit to continue to apply to those within the UK and ensure that those residing within the European Union will now be required to meet the same criteria as those residing in third countries are currently expected to meet when applying for controlled work and not present in the United Kingdom.

Licensed work is a categorisation of work that is generally granted where there is a need for representation in court, and the procedural criteria that currently apply for individuals applying for licensed work in England and Wales who reside outside the EU and are not present in England and Wales will now apply to those who reside outside the United Kingdom and are not present in England and Wales. In other words, it will level down the playing field as between those resident in the EU and those resident otherwise in a third-party country. As such, those residing within the EU will now have to meet the same criteria as those residing in third countries for the purposes of applying for licensed work in England and Wales.

With respect to the changes made to the domestic legislation implementing the EU legal aid directive and to the procedural requirements, the draft instrument makes provision for transitional arrangements for matters that are live under the repealed or amended legislation at the time of EU exit, so at least they will continue under the same rules as before.

As regards the impact, the department carried out an impact assessment, although one would not have been required in the context of the present instrument. I say that because in 2017, there were only 27 cross-border applications made between England and Wales and the central authorities in all other EU member states with regard to legal aid and of those, 20 of the applications were from EU member states for legal aid in England and Wales and seven went the other way. In Northern Ireland, it is estimated that there have been three applications over the past two years.

The instrument is necessary to correct deficiencies arising from the UK’s exit from the EU and in LASPO. As I said, the Scottish Government are taking required amendments to legal aid legislation in their jurisdiction separately, in order that that, too, can be addressed. I hope that with that explanation, noble Lords will understand the need to put this in place in the event of our proceeding without a withdrawal agreement, without a relevant transition period and without the scope for negotiation to deal with these matters. I commend the instrument to the House.

[Lord Thomas of Gresford (LD)]

My Lords, I must confess that it is not easy to grasp the scope of these provisions, but then I last filled in an application for civil legal aid when I was campaigning politically for Britain to enter the European Common Market about 55 years ago. In a paper published by the Ministry of Justice in August 2017, Providing a Cross-Border Civil Judicial Cooperation Framework, the Government declared that they would seek to agree new, close and comprehensive arrangements for civil judicial co-operation with the EU. The paper stated:

“We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now”.


In paragraph 7 of that paper, the benefits of the current framework are described as follows:

“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State”.


As with the previous statutory instrument, nothing appeared in the political declaration which refers to these “new, close and comprehensive” arrangements. Again, perhaps the Minister can advise us how far he has got in discussing the future.

An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive set minimum common rules relating to legal aid to improve access to justice in cross-border disputes and it applied to all such disputes involving civil and commercial matters but, in particular, it applied to family law: problems about children, the disposal of assets and so on. As the Minister said, its provisions were incorporated into English law by LASPO, and this SI’s purpose is to ensure that those domiciled or habitually resident in EU member states are not treated more favourably after we leave the EU than those who reside in England, Wales or Northern Ireland. EU residents who require legal services in relation to proceedings in our courts or who wish to enforce an overseas judgment will no longer have a right to legal aid for matters within the scope of the EU directive alone. The SI uses Henry VIII powers under Section 8 of the LASPO Act to revoke the domestic legislation implementing the EU directive in the UK, as the Minister fully explained.

So far as I can ascertain, this statutory instrument will prevent EU residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not to do so would be a breach of “retained enforceable EU rights”. Will the Minister give a concrete example of what “exceptional cases” means? He told us something of the statistics but how often have such applications for legal aid in exceptional cases been made by EU domiciled people or residents? Can he confirm that EU residents, even after Brexit, can apply for legal aid in the ordinary way for, say, a case involving children across borders in an English court, and that it would be granted if the ordinary merits and the means tests were satisfied? Does domicile or residency in the EU disqualify an applicant from legal aid in the normal way?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged for the contributions. The noble Lord, Lord Thomas, makes a good point about the advantages for all in securing mutual judicial recognition and enforcement. That is why, at an early stage, we sought to take forward those discussions with the profession on what was required. He is right to observe that the matter is not contained in the withdrawal agreement or the existing declaration but is an ambition. That may seem very little but, recognising that, we have taken forward what we can, which is to deal on a unilateral basis with the more recent Hague conventions that have been entered into by the EU on behalf of member states. We have engaged in discussion to become an individual state signatory to those conventions. My recollection is uncertain but I think the 2005 and 2007 conventions were involved. We have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that. Again, to become a party to Lugano, we require the consent of the EU because it is also party to it. Those steps are being taken forward and we are conscious of their importance. I underline that.

On legal aid provision, there is no question of a disqualification being applied on the basis of residence in the EU. Let me be clear about that. The point is that the scope of the EU legal aid directive is wider than the scope of the legal aid provision under LASPO. This instrument is to bring that into line with LASPO and have a situation whereby, in certain forms of civil and commercial dispute, the directive would require consideration of a legal aid application that would not otherwise fall under the LASPO provisions.

[Lord Thomas of Gresford]

I was asking what the exceptional cases are.

[Lord Keen of Elie]

I was coming to that and would point out that the exceptional case provision is there for all cases that fall under LASPO. That will apply equally to those resident in the EU, as it would apply to those resident in the United Kingdom. Again, I point out that there is no disqualification or discrimination in respect of that matter; it is a case of ensuring that there is a level playing field whereby the scope of legal aid availability and the qualification for that aid are the same. It may not assist your Lordships much but there are provisions in the EU directive for taking account of differences in standard of living, for example, when applying financial criteria for legal aid under the directive. It is that sort of provision that we have to deal with to ensure that there is a level playing field. I emphasise that this instrument does not seek to disqualify anyone who would otherwise qualify for legal aid under LASPO, whether under the exceptional provisions or standard provisions of that scheme. I hope I can reassure your Lordships on that point.

I have rather forgotten the other points that the noble Lord, Lord Beecham, so eloquently made, but if I sit down without answering, will he remind me afterwards and I will write to him? As I say, I want to underline the purpose of the instrument, which is to produce a level playing field, not a disqualification.

Brexit: Legal Position of Withdrawal Agreement

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 3rd December 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Statement and for giving me advance notice of what it contained. On 14 November, the Government published an explainer document in conjunction with the text of the draft withdrawal agreement. Paragraph 158 states that the agreement contains,

“assurances that we cannot be kept permanently in the backstop”.

That is not the view of the Attorney-General as set out in this Statement. He says:

“There is … no unilateral right for either party to terminate”,


the agreement. The Northern Ireland protocol places the whole of the United Kingdom in a single customs territory with the EU. As the Attorney-General’s Statement says, that will continue to apply in international law unless and until it is superseded by a permanent agreement. Northern Ireland alone must additionally follow many of the EU’s single market rules and will consequentially, whatever the DUP may say, have a different status from Great Britain.

The legal statement that has been produced today rightly focuses in particular on Article 20 of the protocol. It is not a break clause, which might in defined circumstances permit the United Kingdom to break the arrangements and walk away from the single customs territory; it is a review clause whereby one party, if it thinks fit, may seek agreement from the other that the protocol is no longer necessary essentially to protect the 1998 agreement in all its dimensions. If there is agreement, the single customs territory comes to an end but, in the absence of agreement, the dispute is to be resolved by an arbitration panel whose decision is binding on both parties. If a question of the interpretation of Union law arises, the panel cannot determine it; it must seek a definitive ruling from the Court of Justice of the European Union.

Paragraph 11 of the annexe to the legal position document suggests that the arbitration panel would be considering, for instance, whether the parties were acting in good faith or lawfully. I understand that the Attorney-General has expanded on this in another place today. I regard that as a distraction tactic. Does the Minister not agree that the real question the arbitration panel would decide is not whether the parties were acting in good faith but whether, in its opinion, maintaining the single customs territory was still necessary for the purposes of the 1998 agreement? Is not the whole purpose of the protocol to maintain frictionless trade between the whole of the United Kingdom and the EU in order to avoid a hard border in Ireland? Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine, even though it will get its law from the CJEU? If that arbitration panel says that it is still necessary to maintain the single customs territory, we remain in it. We remain in the backstop. We remain in the single customs territory. There will be no trade deals being brought into effect. Does the Minister agree that that is the legal position?

[Lord Keen of Elie]

My Lords, I am obliged to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Thomas of Gresford, for their observations. I shall begin by saying clearly that I am not going to comment upon leaks to the media that may or may not have been made and may or may not be accurate, and I am not going to comment upon any correspondence that the Attorney-General may or may not have had with members of the Cabinet. Like the noble Baroness, Lady Chakrabarti, I observe that the issue of contempt is one for the Speaker and Members of the other place, and I make no further observation on that point.

The steps taken by the Attorney-General and the Government in respect of this matter are consistent with and correspond to the undertakings that were given in the other place by my right honourable friend the Chancellor of the Duchy of Lancaster.

A great deal has been said about the Northern Ireland protocol and the backstop. I begin by observing that it is the intention of the Government that the backstop should never be required and that during the implementation period we will engage in negotiation for an agreement that will mean that the backstop itself is not required. But of course there remains the possibility that it will be required; albeit it is one of two alternatives, because the alternative is to extend the transition or implementation period.

Let us look at the backstop itself. The noble Lord is quite right to say that, on the face of it, there is no unilateral right to withdraw from the backstop. That is quite clear in the terms of the protocol to the withdrawal agreement. But that is not the end of the story by any means. There have been various suggestions that somehow the United Kingdom, including Northern Ireland, will be locked into the backstop indefinitely, for ever. The noble Baroness, Lady Chakrabarti, talked about the single keyholder being the European Union, which at its whim will simply decide to leave the door locked and walk away with us in the backstop for ever and a day. That is simply unsound as an analysis of the legal position.

Under the terms of the Northern Ireland protocol, and, in particular, Article 2, there is an express obligation on the parties to use their best endeavours to reach an agreement that will not require the maintenance of the backstop. The term “best endeavours” is well worn in both domestic and international law and imposes a strong obligation upon the parties to conduct themselves in such a way that they can realistically and reasonably achieve an alternative settlement. If that obligation is not obtempered or met by one or other of the parties simply because it wants to leave the backstop in place indefinitely, there is a dispute resolution mechanism. It is not just about acting in good faith or about whether or not the backstop is necessary; it is whether or not the backstop continues to be necessary because one or other party has not used its best endeavours to adopt or agree an alternative arrangement. That would be subject to arbitration in terms of the withdrawal agreement.

Pursuant to Article 178 of the withdrawal agreement, if there was a failure on the part of a party to obtemper the ruling of the arbitration panel, which can be arrived at by a majority, there would be the right on a temporary basis to suspend implementation of a part of the agreement that was being held in place simply because of a breach of that obligation of good faith. But it goes further than that. In the event that there was a persistent failure on the part of, for example, the EU to obtemper its obligation of best endeavours and to adopt what was plainly a suitable alternative arrangement for the Northern Ireland protocol, one would have regard to Article 60 of the Vienna Convention on the Law of Treaties, which provides that a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. You then look at the definition of a material breach.

So this is not a case of being locked in with the EU holding the key. It has clear, express and unambiguous legal obligations to obtemper in the context of the Northern Ireland protocol, and if it fails to do so then there are remedies available. I reiterate that it is not a case of one or other party having the unilateral right simply to walk away from the protocol. That would not be appropriate in any form of international agreement. There is a mechanism whereby the agreement cannot be abused by either party and whereby if it is abused, there can be a resolution involving termination or suspension of a particular provision.

Candidly, I do not believe that two bodies such as the United Kingdom and the European Union are going to find themselves in a situation in which, over a period of time, one or other is not going to act in good faith in the field of its international obligations and is not going to discharge its obligations to use its best endeavours to arrive at an alternative agreement.

I hope that that goes some way to meeting the points raised by the noble Baroness, Lady Chakrabarti, and the noble Lord, but I emphasise that, ultimately, I am seeking to address the legal issues that arise in the context of the withdrawal agreement and, like the Attorney-General, I am perfectly prepared to answer any question from this House on the law—albeit they may be better informed by other and better lawyers inside and outside this House. I have no difficulty in responding, in so far as I can, to legal issues raised with regard to the withdrawal agreement. The Attorney-General took exactly the same position in the House of Commons. He recognised his duty not only in government but to the House to give such legal assistance as he could to the House to resolve any issues that may arise in this context. That is where we stand.

I just add this. After 45 years, clearly there are issues to be worked out between the parties, and the withdrawal agreement will allow for the necessary time and legal means for that process to unfold in an orderly, peaceful and sensible way. I reiterate that I am at the disposal of the House to answer questions of law, although they might be better answered by other Members of the House. Thank you.

Private Burial Grounds

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 18th June 2018 Lords Chamber

[Lord Keen of Elie]

I deeply regret that the noble Lord’s interest is posthumous. I am not in a position to answer the specific point raised by the noble Lord, but I will write to him and place a copy of the letter in the Library.

[Lord Thomas of Gresford (LD)]

My Lords, what is the policy of the Government in issuing licences under these Victorian burial Acts which permit the digging up of bodies in order to hold new burials? For how long must a person be buried before his remains are exhumed? How many licences have been issued, and have there been any prosecutions?

[Lord Keen of Elie]

My Lords, as regards private burial grounds, the removal of a body from a burial ground would be an offence pursuant to Section 25(1) of the Burial Act 1857, unless there was a statutory consent for such removal.

Belhaj and Boudchar: Litigation Update

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Thursday 10th May 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Attorney-General’s Statement.

On 21 February 2008, this House was concerned with the use of UK facilities and UK airspace by the United States for the purposes of extraordinary rendition. In answer to a Written Question from my right honourable friend Menzies Campbell, now my noble friend Lord Campbell of Pittenweem, assurances had been given by Mr Jack Straw in 2005, and later assurances were given by Mr Blair, the Prime Minister, in 2007, that these events had never occurred—that there had been no extraordinary rendition. A Statement in February 2008 was made by the noble Lord, Lord Malloch-Brown, in this House to the effect that this was incorrect and that extraordinary rendition had taken place through the British territory of Diego Garcia. Perhaps I may crave the House’s indulgence for quoting myself. I said on that occasion:

“We look for a public inquiry, as we have called for several times, which will investigate what extraordinary renditions have taken place not just to European countries but to places where we know that torture takes place—places such as Syria, Egypt, Morocco and Jordan, where it is thought that there are secret holes where United States detainees are held. We cannot be satisfied by assurances given by the Government today on this matter”.—[Official Report, 21/02/08; col. 351.]


Nothing was said in 2008 about the events of 2004—the abduction, detention and rendition to Libya of Mr Belhaj and Mrs Boudchar, who were opponents of the Gaddafi regime and could expect torture and imprisonment.

Today, the Prime Minister’s apology, as we have heard, contains the following:

“The UK Government’s actions contributed to your detention, rendition and suffering”.


We are entitled to know in what specific way. Mr Belhaj’s claim was that MI6 provided information to the CIA which led to his capture in Kuala Lumpur in 2004 and rendition via Bangkok to a Libyan jail. He further claimed that he was interrogated by British intelligence officers during his six years’ imprisonment and during the period of torture that he endured. All this was denied at the time. The Prime Minister says in her letter:

“The UK Government believes your accounts”.


Therefore, I take it that what Mr Belhaj said in his statement of claim is admitted, despite the fact that liability in the case is not admitted.

Another phrase used by the Prime Minister was that she was,

“profoundly sorry for the ordeal”,

of Mr Belhaj and Mrs Boudchar. If that is so, why did this Government try to quash these proceedings and argue a defence of state immunity and “foreign act of state” immunity all the way up to the Supreme Court as recently as January of last year? Do the Government now recognise that these defences must be subject to exceptions where there are violations of fundamental norms of international law and basic human rights, such as the prohibition of torture, which has been recognised in this country since Felton’s case in 1628?

A further point is that the costs of such a series of applications and appeals, which were unsuccessful, have no doubt fallen upon the public purse. What were those costs?

[Lord Keen of Elie]

I thank the noble Baroness, Lady Chakrabarti, for her observations and the noble Lord, Lord Thomas. As the Statement made clear, more could have been done to prevent the suffering of Mr Belhaj and Mrs Boudchar when the Government shared information with their international partners. Although the Government believed assurances that they sought in good faith about the treatment, with the benefit of hindsight they feel that they could have done more. Furthermore, after the detention of Mr Belhaj and Mrs Boudchar in Libya, it is now clear that the United Kingdom Government missed opportunities to alleviate their plight.

As regards future ministerial scrutiny, of course that will be all that is required to ensure that these events do not repeat themselves. Our vigilance will be clear and robust, and will reflect our core values, as outlined by the noble Baroness.

With regard to the queries from the noble Lord, Lord Thomas of Gresford, I will not make any comment on operational matters, but it is not the case that the Government tried to quash any decision. The case which was raised and which has now been settled without admission of liability raised complex issues of law, and we of course respect the decision of the United Kingdom Supreme Court handed down in January 2017. The costs were incurred by the Government Legal Department and were approximately £3 million.

European Union (Withdrawal) Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

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

[Lord Keen of Elie]

I am not in a position to say that such work would be published, because of course it has been on the basis of engagement between officials dealing with this. I do not believe that there is any official report to that effect; it is just a matter of the product of engagement between officials negotiating these matters. Therefore I cannot indicate that we will publish anything in that regard. That is to try to explain the position with regard to the sunset clauses in the regulations. I turn to the question—

[Lord Thomas of Gresford]

The Minister was about to tell us about the gap my noble friend introduced between exit day and the making of the regulations.

[Lord Keen of Elie]

I am obliged to the noble Lord. There may be a situation in which powers go to the devolved Administrations and yet they do not deal with those powers, and it may be considered that upon further consideration there are additional areas where frameworks ought to be based on a UK-wide determination and where regulations would be made. But as the noble Lord himself observed, that regulation-making process would involve us consulting the Scottish and Welsh Governments—and, I hope at that stage, a Northern Ireland Executive—so that we could secure their consent. Only if there was a failure to secure the consent would the matter go forward to this Parliament, with two clear safeguards. First, the Minister of the Crown would have to explain to Parliament why he was seeking to make those regulations without the consent of a devolved Administration, and secondly, there would be an opportunity for the devolved Administration to make their representations to this Parliament as to why they felt it appropriate to withhold their consent. But, as I said, there may be a period after exit when it occurs to parties that it might be appropriate to proceed in that way.

Turning to the question of where we are with the Scottish Government, I begin by saying that the door—

Non-Disclosure Agreements

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 1st May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes two things clear. First, if an employee does not get independent legal advice regarding such an agreement it will be void. Secondly, it ensures that where a non-disclosure agreement has been entered into it does not affect the right of the employee to make a protected disclosure—that is, a disclosure that pertains to various forms of wrongdoing and is made to a protected party.

[Lord Thomas of Gresford (LD)]

But protected disclosure does not cover all forms of sexual harassment or harassment in the workplace. Is there not a duty on lawyers to make it clear to their clients, whether employers or employees, that non-disclosure clauses in contracts of employment or settlement agreements cannot be used to conceal criminal conduct or to prevent the reporting of conduct that amounts to sexual harassment, particularly where it involves an abuse of power by a senior over a junior or where it is repeated and habitual?

European Union (Withdrawal) Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

[Lord Keen of Elie]

There we go.

The next stage is to say that we as a Parliament do not trust our ability to hold the Executive to account. Then we go on to the next stage to say, of course, that we do not trust the electorate to return a Parliament that is capable of protecting their fundamental rights. What happened to the mother of Parliaments? What happened to the concept of the sovereignty of this Parliament? We are apparently prepared to abandon it in favour of a body of foreign law because we no longer trust ourselves to protect our own fundamental human rights. Is that what we have really come to? It is a shocking dénouement: whether you wish to leave the European Union or you do not wish to leave the European Union, the idea that we are going to have to cling on to a body of foreign law in order to maintain fundamental human rights in this country is simply astonishing. As I indicated before, it would reflect not only a constitutional outrage but a total abdication of our responsibilities.

Looking to Amendment 15, what is it actually going to do? It is going to bring into our domestic law a charter that relies upon union law—a developing body of foreign law going forward. Are we going to monitor this, because we are not ring-fencing the terms of the charter if we bring it into retained EU law? It will be subject, going forward, to the Explanatory Notes; it will be subject, going forward, to the development of Union law; and on the back of that, where we are supposed to be directly implementing EU law—and I can only infer that the intention of the amendment, although it is not stated and cannot be found there, is that this applies to retained EU law rather than EU law itself—the intention is that we should therefore be bound to watch while primary legislation of this Parliament is struck down on the application of a foreign body of law. We need to wake up to why the charter in its present form does not sit with our future constitutional settlement after we leave the EU and why it does not fit with the body of retained EU law that is referred to in the Bill.

[Lord Thomas of Gresford (LD)]

If the charter is incorporated, does it not become retained EU law? Therefore, it would be subject to the mechanisms that are set out in Clause 7 of the Bill, which would enable Parliament, or Ministers—however we decide—to change it afterwards, with proper debate. What is going to happen to the rights contained in the charter which are above the rights that we have at the moment, as he has conceded and as has been conceded by other people? What is going to happen to those rights? They will fall away; they will not become part of retained EU law and therefore will not be part of the law of this country.

[Lord Keen of Elie]

With great respect to the noble Lord, just because the charter is made part of retained EU law in terms of the Bill does not mean that Union law, which is the linchpin and anchor of the entirety of the charter, is then retained EU law. Union law remains Union law. Therefore the charter will continue to develop. Even though it is ring-fenced within retained law, the body of the charter will be subject to Union law. You cannot have it both ways.

The noble Lord also mentioned the loss of rights. As we indicated, we have done an analysis of rights, which has been published. We have indicated that if, once this Bill is passed, it is apparent that any substantive rights are lost, we will address that. With great respect, it appears to me that the noble Lord misses the fundamental point, which is that we are effectively going to be submitting to a body of foreign law after we exit the EU if we proceed in this way. I am afraid that is the case. We cannot say we are going to be directly implementing European Union law when we are no longer a member. We will not be. It amounts to that.

I accept that various views have been expressed by various parties about the scope of the rights that will be retained after we leave the EU without the charter, and there is a lively debate about that, but let us remind ourselves again that the charter has application only when we are directly applying EU law. My noble and learned friend Lord Mackay of Clashfern made the point. What happens to the right to dignity in circumstances where we are not directly applying EU law? Of course it still exists. We recognise that. We would have no difficulty in recognising that, and we do not require Article 1 of the charter for that purpose. In these circumstances, noble Lords have indicated, quite rightly, that to incorporate, or even to attempt to incorporate, the charter, particularly in the form of this amendment, is to do serious damage to our entire constitutional settlement, particularly post Brexit. I hear someone say, “Outrage”, and I agree with them.

I now come to Amendment 18, which was tabled by the noble Lord, Lord Beith. He suggested that his amendment would be a necessary consequence if Amendment 15 is carried, but I do not accept that it is a necessary consequence in those circumstances. His amendment, which seeks to remove the power in paragraph 2(2)(b) of Schedule 1 and the related provisions in sub-paragraph (3), is not appropriate. Schedule 1 generally ends the ability to bring challenges on EU law validity grounds to what will become retained EU law after we leave. After exit, individuals would continue to be able to challenge EU decisions before the CJEU and to have them annulled, in so far as they apply in the EU. The converted form of the decision would, however, remain in force within the United Kingdom. Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not think it would be right to hand them a wide-ranging new jurisdiction which asks them effectively to assume the role of the CJEU. The noble Lord’s amendment does not alter that general exclusion.

Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument which has been converted and should have a right to challenge it. For example, it would be strange if after exit a UK business were able to challenge and have struck down an EU decision which prevents it carrying out certain trading activities within the EU but would not have any equivalent right of redress in relation to the form of that decision which has been retained as part of UK law. It is for that reason that provision is made for this power. I note the noble Lord’s observation that it may be exceptional and may never be used. I accept that, but it is felt that it should be there as a safety measure. I urge the noble Lord not to insist on that amendment.

With regard to the position of the noble Lord, Lord Pannick, I ask him to think again about Amendment 15. I ask him to think very carefully about the form of it and what he is actually attempting to bring into domestic law, because it simply does not fit. It is in those circumstances that I invite him to withdraw his amendment.

European Union (Withdrawal) Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

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

[Lord Keen of Elie]

In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.

I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.

[Lord Thomas of Gresford]

As I understand what the Minister is saying, ultimately everything has to be settled by primary legislation, so there will be a single market in the United Kingdom that is settled by primary legislation—for which legislative consent will be sought and no doubt given. What we are talking about is an interim period when Ministers take powers to themselves. Over a temporary period they will in effect dictate what the framework agreement will be until there is a final agreement in a number of years—that is what I understand the Minister to say.

[Lord Keen of Elie]

With great respect, I do not think the noble Lord, Lord Thomas, has understood what I said. It is not a case of us dictating anything to the devolved Administrations; it is a case of ring-fencing these limited competences until we have reached agreement with the devolved Administrations as to what the framework agreements will be. They will then be put forward for the purpose of legislative consideration in the usual way. But it is not suggested that we are going to start regulating agriculture in Scotland in the meantime—that is not what is comprehended by this at all. I do not know whether I asked this earlier, but will the noble and learned Lord withdraw his amendment so that I can sit down again?

[Lord Thomas of Gresford]

Before the Minister does, how long will this ring-fence last? I believe the Barnett formula was temporary; how long does the Minister envisage the ring-fence will last before there is a proper legislative framework?

[Lord Keen of Elie]

It will last until we have managed to implement all of the framework agreement. That will be a finite period—there is no question about that. Indeed, if the noble Lord looks at the proposed amendment to Clause 11, he will see that there are various checks and balances, including the requirement that Ministers report to Parliament if they retain the powers for any longer. So that is already addressed.

Asylum Seekers: Legal Advice

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 5th February 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the period for which a person has remained illegally in this country should not be and is not a determinant of their right to remain here. It is necessary to apply the relevant law both to the issue of asylum seekers and those who arrive here unlawfully, not even seeking asylum.

[Lord Thomas of Gresford (LD)]

My Lords, a Bar Council report published last November found that at any one time more than 3,000 people, mostly failed asylum seekers, are held in administrative detention without being convicted of a crime, at a cost of £34,000 each. More than half are ultimately released into the community when their appeals succeed. Last Friday, in the case of VC, an asylum seeker from Nigeria with mental problems, the Court of Appeal slammed the Home Office for misinterpreting its own policy and awarded damages. Will the Minister review the means and merits test applied by the Legal Aid Agency, which academic research shows operates to exclude detainees from legal aid by,

“seizing upon the tiniest thing”,

to declare their applications ineligible?

[Lord Keen of Elie]

My Lords, the Legal Aid Agency is of course independent of Government for very proper and good reasons. The application of LASPO—the legal aid Act—is the subject of internal review at present following an announcement by the then Lord Chancellor in October last year.

Crown Prosecution Service: Disclosure Procedures

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Monday 29th January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, we recognise that compliance with disclosure requirements is vital if there is ever to be a fair trial. On a review of present policy, the Attorney-General’s review will take account of recent reports from judges and Her Majesty’s inspectors, as well as gathering additional evidence from bodies, including the judiciary, the Bar Council, the Law Society, police representatives, and prosecutors. In addition, last week the Attorney-General and the Home Secretary addressed a joint letter to both the CPS and the chief constable of the national policing lead on disclosure and the chief executive of the College of Policing, repeating their expectation that a full review is undertaken of all cases similar to those that have already been identified, to determine whether disclosure has been properly carried out.

[Lord Thomas of Gresford (LD)]

Does the Minister not agree that it would be quite disproportionate for the victim to be required to disclose all her emails and electronic messaging to her attacker and his lawyers to trawl through at considerable public expense? Will the Minister not pursue the suggestion I made in our debate a fortnight ago that there should be a protocol whereby a defendant is required to give key words, such as his name, his nickname, places, people and events, to the prosecution for it to carry out such an investigation and to disclose whatever material he has suggested is produced?

[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.

Selection of the President of Welsh Tribunals Regulations 2017

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Wednesday 29th November 2017 Grand Committee

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

By way of background, there are seven devolved tribunals that are the responsibility of the Welsh Government: the Mental Health Review Tribunal for Wales, the Special Educational Needs Tribunal for Wales, the Agricultural Land Tribunal for Wales, the Adjudication Panel for Wales, the Residential Property Tribunal Wales, the Welsh Language Tribunal, and a tribunal covering the registered school inspectors appeals panels and the registered nursery education inspectors appeals panels.

There are 41 judges currently appointed to those tribunals. Each tribunal has its own judicial lead but these judges have limited access to senior judicial leadership within Wales, which is inconsistent with other judicial officeholders in England and Wales. Sir Wyn Williams, a retired High Court judge, has been undertaking an informal leadership role, but he does not have any statutory powers.

To address this, Part 3 of the Wales Act 2017 created a new post: the President of Welsh Tribunals. The president has responsibility for making arrangements about the training, guidance and welfare of Welsh tribunal members, as well as for representing their views to Welsh Ministers and other Members of the National Assembly for Wales. The president will also be able to give practice directions and will be responsible for deploying tribunal members between the different Welsh tribunals, as well as between the UK-wide tribunals and the Welsh tribunals.

The president will also be responsible for establishing and communicating the judicial strategic direction for the Welsh tribunals. He or she will provide leadership and build effective relationships with the judicial leads of the Welsh tribunals, as well as with the Welsh Government’s Welsh Tribunals Unit, the Lord Chief Justice, the Judicial College, and Ministers and officials in the Welsh Government, relating to policy issues affecting the Welsh tribunals.

Paragraph 2 of Schedule 5 to the Wales Act 2017 provides two routes for the appointment of the President of Welsh Tribunals. The first is by agreement between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers with regard to a person who is, or has been, a judge of the Court of Appeal or the High Court. The second route, in default, is following selection by the Judicial Appointments Commission.

If agreement cannot be reached between the Lord Chief Justice, the Lord Chancellor and the Welsh Ministers on the appointment, paragraph 2 of Schedule 5 to the Wales Act 2017 requires the Lord Chief Justice to make a request to the Judicial Appointments Commission for a person to be selected for appointment to the office of President of Welsh Tribunals.

Elements of the procedure for appointment by the Judicial Appointments Commission are set out in the Act itself. These include that the Judicial Appointments Commission must appoint a selection panel which must include at least two members who are non-legally qualified, at least two judicial members and at least two members of the Judicial Appointments Commission.

The Lord Chancellor is also required to make additional provision about the process to be applied. That is what these regulations do. In particular, they specify that the selection panel should consist of five members and make further provision about the appointment of people to that panel, including that the chairperson of the panel is to be a person designated by the Lord Chief Justice who holds, or has held, office as a judge of the Supreme Court, a Lord Justice of Appeal or a puisne judge of the High Court.

The regulations also make further provision relating to consultation during the process and to the reporting of the panel’s selection to the Lord Chief Justice and the Lord Chief Justice’s options when deciding on that selection. In order to be consistent with the relevant primary legislation and the nature of the new office, the appointment process closely reflects that which applies to the selection of the Senior President of Tribunals.

The Wales Act 2017 established the role of the President of Welsh Tribunals and the requirements for the appointment of a judicial officeholder to that office. These regulations allow that appointment to be made. I therefore commend the regulations to your Lordships and beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I very much welcome these regulations, although I hope that the machinery that they set up will not be used, because of course the alternative way is by agreement between the Lord Chancellor, the Lord Chief Justice and Welsh Ministers.

At a time when the independence of the judiciary has been under attack, when we have heard expressions in the press such as, “Enemies of the people”, and when the press has questioned the impartiality of judges in many ways and the degree to which they are in touch, it is very important that the independence of the judiciary in Wales should be emphasised. In most of these tribunals, one of the parties concerned will almost certainly be the Welsh Government or local government, and it is very necessary that the administrative tribunal should be seen to be impartial.

I am very pleased that my old friend Sir Wyn Williams has been acting in an informal capacity as President of Welsh Tribunals—we used to meet on many a rugby field in our youth. Hopefully, he will continue in that role, and maybe he will be a candidate for president. I could not imagine the independence of the judiciary being in better hands to give leadership and direction. So many of the 41 judges who are sitting on these tribunals are lay persons without necessarily any lengthy experience in the law, so it is important that they should be properly trained and properly led. I am sure that that has been done under Sir Wyn Williams and that it will continue under these regulations.

Civil Procedure (Amendment) Rules 2017

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Wednesday 13th September 2017 Lords Chamber

[Lord Keen of Elie]

Let us be absolutely clear about what the position is. When a claimant begins the proceedings, there is a default cap, but on seeing the schedule of means, the court may vary that cap, downwards or upwards—downwards to the benefit of the claimant, upwards to the benefit of the defendant, potentially. Therefore, that is appropriate.

[Lord Thomas of Gresford]

The regulations as drafted suggest that there can be alteration depending upon the court’s view of the merits or demerits of the case as it goes along. Am I wrong in that?

Magistrates: Sentencing Powers

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 8th November 2016 Lords Chamber

[Lord Keen of Elie]

I am not in a position to comment on “revelations” in Private Eye and do not intend to do so. So far as the modelling of any increase in sentencing powers is concerned, that is presently under review, and we will come to a decision on it in due course.

[Lord Thomas of Gresford (LD)]

The noble and learned Lord talked in his first Answer this afternoon about the importance of rehabilitation. Short sentences are, without doubt, hopeless for that purpose. Should not the emphasis be on developing better and more intensive non-custodial sentences and on training magistrates, including the Magistrates’ Association, in the value of such sentences?

[Lord Keen of Elie]

Clearly, magistrates have the training and skill to consider a wide variety of sentencing powers and to impose a wide variety of sentences. We have no hesitation in acknowledging that. Whether they should or should not be custodial sentences, at the end of the day, must be a matter of judgment in each individual case.

Investigatory Powers Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Wednesday 13th July 2016 Lords Chamber

[Lord Keen of Elie]

I note what the noble Lord says and welcome the suggestion that we speak to the Northern Ireland Office to see what its experience has been over the past 16 years and take that into account. However, at this stage, without further elaboration, and appreciating that the Committee understands the issue of principle that we are concerned with, I invite the noble Lord to withdraw the amendment.

[Lord Thomas of Gresford (LD)]

I have listened with puzzlement. I know that anecdotes do not go down terribly well, but some years ago I was playing rugby for the northern circuit of the Bar against the Irish Bar. I became friendly with an American spectator and talked with him; I think that I introduced him to the Chief Justice of Ireland that evening at dinner in the King’s Inns. However, the following Wednesday half a page was written about the American, who was on the run from the United States for spying. Everything comes into that, including surveillance. I thought no more about it for a fortnight until the phone rang, and it was him. He said, “I want your advice”. I said, “Where are you?”. He said, “I’m in Paris”. I said, “What do you want to know?”. “He said, “Which countries don’t extradite to the United States?”. I could not conceivably breach legal professional privilege by telling your Lordships what my advice was, but would that merit a warrant for interception of the telephone call to me at my home from somebody in Paris in such circumstances?

[Lord Keen of Elie]

There might be circumstances in which the relevant individual was intent upon a terrorist outrage in Paris, and if the fact that he was going to communicate with the noble Lord was known to the authorities, they might consider that piece of intelligence to be absolutely critical to preventing that terrorist atrocity. In those circumstances, it is possible that the information could be obtained.

[Lord Thomas of Gresford]

But not the fact that he was proposing to escape charges of spying by going to another country. Was there something iniquitous about our conversation?

[Lord Grabiner (Non-Afl)]

There probably was because no solicitor was engaged. So privilege was not attracted at all.

[Lord Keen of Elie]

The noble Lord makes a good point, and it may be that the noble Lord, Lord Thomas, wishes to refer himself to the Bar Standards Board. However, I understand that the rules have changed since then.

[Lord Thomas of Gresford]

The first thing I did was to instruct a solicitor to go and see him.

Scotland Bill

Debate between Lord Thomas of Gresford and Lord Keen of Elie

Tuesday 8th December 2015 Lords Chamber

[Lord Keen of Elie]

There is no express reference in the Smith commission agreement to a referendum. As my noble friend is aware, that provision was brought into the Bill in the belief that it would strengthen the political statement contained in Clause 1 with regard to the permanence of the Scottish Parliament.

[Lord Thomas of Gresford (LD)]

My Lords, I believe that this introduces the Welsh element. There would be a profound disinterestedness in Gresford about whether the Scottish Parliament exists or not, save in so far as the Barnett formula gives them so much more money than we get. On the other hand, we would resent it hugely if the noble Lord, Lord Forsyth, had a vote in a referendum for the abolition of the Welsh Assembly, or, indeed, any successor.