Feltham Young Offender Institution

Debate between Lord Carlile of Berriew and Lord Keen of Elie

Wednesday 24th July 2019 Lords Chamber

[Lord Keen of Elie]

I note the observations of my noble and learned friend. It may not be appropriate to generalise about the state of the youth custody regime. It is clear, and it should be acknowledged, that there have been real operational difficulties at Feltham A over several months—of that we can have no doubt. Indeed, there was a hiatus when a Feltham governor was promoted and, unfortunately, the incoming governor had to work out a period of notice before moving into post. Again, that created real difficulties. But there are also areas of success in the youth custody regime: for example, I will mention in passing Wetherby, where —my noble and learned friend made a good point here—a well-established governor has been in place since October 2016 and has therefore had the time and space to settle a once-troubled establishment. So I agree that continuity and consistency are important if we are to deal with these issues.

[Lord Carlile of Berriew (CB)]

My Lords, does not Peter Clarke’s shocking report reveal two things: first, that the Ministry of Justice has been asleep on the job and is not the right department to be running youth custody institutions; and, secondly, that issues concerning children in custody should be part of children’s policy, not penal policy, and should be run by the government department that is responsible for children?

[Lord Keen of Elie]

I cannot accept either proposition put forward by the noble Lord. The ministry has certainly not been asleep on the job. Our dedicated staff of civil servants and the immediate staff in these establishments apply themselves to the very demanding tasks with regard to the youth custody regime. We must remember that we are dealing with young people in the age group of 15 to 18 who, in some instances, have a tendency towards violence, may be disturbed and do have other problems. Earlier, I mentioned the very real issue of securing motivation before you can effect rehabilitation.

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

Debate between Lord Carlile of Berriew and Lord Keen of Elie

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

Respectfully, it appears to me that we have demonstrated that throughout the process.

[Lord Carlile of Berriew (CB)]

My Lords, can we return to the legal advice, which is the subject of this Statement? Does the noble and learned Lord agree that the legal advice has not changed at all—yes or no?

Further, if we adopt his attractive metaphor about Italianate sculpture, does the Minister agree that if yesterday’s breathless Statement from the Prime Minister, anticipated in the House of Commons, is a fig leaf, if we lift that fig leaf, we will find that behind it are no parts whatever? To proceed towards an impossible, extreme scenario, as suggested by the noble and learned Lord himself, is something that a skilled lawyer in private practice, as the noble and learned Lord has been, would say to every client, “You can’t do it”.

[Lord Keen of Elie]

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

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

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

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

Brexit: Negotiations

Debate between Lord Carlile of Berriew and Lord Keen of Elie

Tuesday 20th November 2018 Lords Chamber

[Lord Keen of Elie]

My understanding, as I said before, is that the Prime Minister is going to be meeting with Mr Juncker in the very foreseeable future and that the discussions are going to be taken forward. As to when the final political statement will be concluded, I cannot give a specific date but the intention is, as previously stated, that it should be available by the end of November. I cannot say when it will come before Parliament; at this stage I cannot give a definitive date from the Dispatch Box, but I am quite willing to write to the noble Lord if I have any further information on that point.

The noble Lord, Lord Kerr of Kinlochard, mentioned Article 50 and has previously observed that he had a hand in its drafting. As a general rule of law, one does not submit subjective evidence over the construction of a contractual provision, and there are very good and compelling reasons for that. However, I note what he has to say about the idea of the EU 27 being prepared to stop the clock. With great respect, it appears to me that the indication is: “Let us get on with it. Let us go forward. We have an agreement for withdrawal. Let us implement that. Let us then address how you are going to leave”—because we are going to leave the European Union on 29 March 2019.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, made his maiden speech today. I thank him for that and compliment him on his contribution to the debate. It was suggested that he should not have used a maiden speech to be controversial, but I would not take issue on that. It is a matter of deep concern to the noble Lord and his fellow Peers from Northern Ireland that we should address the matter of the border and the integrity of the union in this context, and I fully understand his concerns, but I cannot accept that Northern Ireland is either a hostage or a sacrifice in the circumstances. Far from it: our concerns lie in maintaining the union. In so far as he suggested that a hard border was a fictitious idea and could be managed, I do not disagree with him. That is one reason why we anticipate that the backstop will not be required. But, as it is, the people of the United Kingdom of Great Britain and Northern Ireland have spoken as a United Kingdom, and their decision is that we should leave the European Union.

The noble Lord, Lord Carlile of Berriew, pointed out that the role of Parliament must be remembered. Like him, perhaps, I am a Burkean on the issue of representative democracy. He said, and I agree, that there should be no running back to the people. It is for Parliament to consider the present withdrawal agreement. It is for Parliament to accept or reject that withdrawal agreement. It is for Parliament to address the consequences of its actions, and it answers to the people in a representative democracy. I agree with much of what he said about the process that we should be going through in this context.

[Lord Carlile of Berriew]

I am very grateful to the noble and learned Lord for giving way, but on that point, dredging up his experience of representative democracy, does he agree that when a Government put forward a proposition in the House of Commons and it is defeated, the normal course is to revert to the status quo ante?

[Lord Keen of Elie]

That might be the normal course, but it is not the invariable course. We have to look forward to how the Government will proceed in the context of the present process, where they present their agreement to the House of Commons, where it will be subject to consideration. I shall not anticipate that outcome, although, like the noble Lord, Lord Desai, I take the view that there is every prospect that the House of Commons, having examined this agreement —I am amazed at how many people commented on it before they could conceivably have read its 580 pages—will find that it takes us forward towards the goal that we were set as a result of the referendum.

European Union (Withdrawal) Bill

Debate between Lord Carlile of Berriew and Lord Keen of Elie

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

[Lord Keen of Elie]

Perhaps I can continue just for a moment. I would begin by looking at the Bill against that background. Paragraph 4 of Schedule 1 is perfectly clear in saying the right to Francovich damages is removed, because of course it is related to a breach of European Union law, and it would not be appropriate to continue—in accordance with Amendment 43—after we have left the European Union. The Bill is quite clear in saying that there is,

“no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.

To that extent, it does deal with the issue raised in the context of Section 16 of the Interpretation Act 1978.

[Lord Carlile of Berriew]

I take it from what the noble and learned Lord is saying that he accepts that there are existing rights to recover damages available in the British courts which the Government wish to remove. That is a breach of promise, is it not?

[Lord Keen of Elie]

I wonder whether the noble Lord could exercise a small degree of patience while I just complete what I have to say on this topic. But we can take as long as it takes. As I was saying, in terms of paragraph 4 of Schedule 1, the right in domestic law to damages in accordance with the rule in Francovich is removed as at exit date. There is of course a proviso in paragraph 27 of Schedule 8 in respect of claims for Francovich damages which have already been raised prior to exit date—the point that the noble and learned Lord, Lord Goldsmith, made. The potential lacuna is this: there may be accrued rights as at exit date where no claim has been made. We recognise that and it was noted in the other place. We are open to addressing that issue in order to ensure that those accrued rights are not removed by the application of paragraph 4 of Schedule 1. That is something that we are prepared to look at, as I have indicated, because we are aware of the criticism that has been made about the potential removal of rights that have already accrued as at the exit date.