European Union (Withdrawal) Bill

Lord Foulkes of Cumnock Excerpts

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

Moved by

[Lord Foulkes of Cumnock]

49: Clause 6, page 3, line 33, after “cannot” insert “, subject to paragraph (c),”

[Lord Foulkes of Cumnock (Lab)]

My Lords, in moving Amendment 49 I shall speak also to Amendment 52. I read the other day that the two most disbelieved statements are, “The cheque is in the post” and, “I am from the Government and I am here to help you”. Here is another one: this amendment is designed to be helpful to the Government, and I hope they will genuinely believe that. It seeks to formalise the agreement reached in December 2017 in the UK/EU joint report in relation to EU citizens and their ability to refer cases to the CJEU.

Clause 6(1)(b) states that, “A court or tribunal”,

“cannot refer any matter to the European Court on or after exit day”.

However, paragraph 38 of the joint report agreed by the UK Government last December states:

“This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part”.


We are not taking away any powers from the courts or tribunals. They decide whether to seek advice, and when they get it they then decide whether to take account of it. It does not in any way undermine the principles the Government have adduced for withdrawal. I hope, therefore, that this is helpful. All I am suggesting is that the joint agreement the UK Government have put their name to should be incorporated into the Bill, and I have helpfully provided an amendment to enable them to do that.

I also draw the Minister’s attention to the draft withdrawal agreement presented on 28 February by Michel Barnier to the Brexit Steering Group. I refer specifically to Article 83, which states:

“Where in a case before a court or tribunal in the United Kingdom a question is raised concerning the interpretation of the Treaties or the validity or interpretation of acts of the institutions, bodies, offices or agencies of the Union relating to facts that occurred before the end of the transition period and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question in accordance with the procedural requirements laid down in Article 267 TFEU. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests”.


Do Her Majesty’s Government agree to that proposal by Monsieur Barnier in the draft withdrawal agreement and do they plan to amend the Bill accordingly?

[Lord Forsyth of Drumlean (Con)]

How would the noble Lord’s proposed new provision work in the event of there being no agreement and is he not anticipating the terms of an agreement?

[Lord Foulkes of Cumnock]

As I understand it, all that we include depends on there being an agreement. It is not just my amendment; it is the whole legislation. I beg to move.

[Lord Liddle (Lab)]

My Lords, I fully support my noble friend’s decision to raise these questions, which are very important. I suspect the Minister will say that the Government have given a commitment that, when the withdrawal agreement is concluded, it will become before this House an Act of Parliament and we will therefore have the opportunity to debate it then. However, there are two powerful reasons why citizens’ rights should be incorporated in this Bill now.

The first is the high level of anxiety that EU citizens have about their position. I am sure there is relief that, in principle, an agreement was reached in December, but there could still be many a slip between cup and lip in its ratification. Those citizens’ rights should be guaranteed now to provide reassurance.

Secondly, I listened hard to an earlier contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he said that the main utility of this Bill is to make sure there is legal certainty if we crash out of the EU—because, assuming that negotiations work, there will be a transition period during which EU citizens’ rights will not be affected. The problem we are dealing with particularly in this Bill is the risk of a crash-out. Of course, the Government will say to us, “Well, we’re very determined there won’t be a crash-out”, but they will not exclude that possibility. It was clear from the intervention at the end of my noble friend Lord Foulkes’ speech that the noble Lord, Lord Forsyth, actually relishes the possibility of a crash-out because he thinks, wrongly, that this is some bargaining leverage we have over the EU.

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[Lord Mackay of Clashfern (Con)]

My Lords, I want to make two short points. The first is that the precedent of giving rights in other countries when there is a separation is set up very well by the arrangements between ourselves and the Republic of Ireland in relation to Irish citizens and their rights in our country, which are guaranteed by statute in a number of cases.

Secondly, on the idea that we have to refer all these matters to the European court, anyone who reads the judgments of our courts from day to day will realise that the fairness they exhibit towards foreign citizens is of the highest possible standard. I know of no country in the world and no court in the world that succeeds in getting a higher standard; there are others that have an equally high standard, but I know of none that has a higher one. It would be a most retrograde step for this House to do anything that suggested to people in Europe that they could not get justice from the courts of this country.

[Lord Foulkes of Cumnock]

Just to clarify, my amendment does not suggest that—quite the reverse. It would be the British court or the British tribunal that took the decision whether or not to refer such matters to the CJEU. It would still be the decision of a UK court.

[Lord Mackay of Clashfern]

I think that is meant to be an intervention, because I have not quite finished. The situation is that the British courts, the Supreme Court in particular, have discretion to look at any judgment that they wish, and to raise any question they wish in these judgments. There is nothing in the present Bill that impedes that, except in respect of questions of European law, because the courts themselves, and the members of the Supreme Court, have been anxious that if they paid too much attention to the European court after Brexit, they might be accused of being involved in politics. They have sought a direction from Parliament on this matter, and that has been attempted, and I hope it is successful.

I personally do not share the animosity that exists in some quarters towards the European Court of Justice. It is over 30 years now since I often appeared before them, and I have nothing but praise for the way in which they do things. They do things very differently to us. There are far fewer oral hearings—at least, there were when I did it, which was a long time ago. There is much less oral pleading than there is in our courts. Actually, our courts have moved slightly in that direction in recent years, since I was last involved with them—and in some cases quite far in that direction.

The respect I have for the European Court is of the highest order, but I do think there is a difficulty because, after Brexit, no judges or advocates-general of the British Bar will be members of the court or advocates-general in the court. That is an important factor to be taken into account in the arrangements. I am not part of the negotiations—I have nothing to do with them—but I do believe that that point has to be taken into account. There is a usual rule that the people administering justice are the people who are in accordance with the arrangements between states. International courts, for example, may not have representatives from all the states that appear before them, but there is a question to be considered in that connection, because the Court of Justice referred to in the amendment will not be the Court of Justice as it is now.

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

My Lords, I am pleased to be able—I use that term advisedly—to respond to the issues raised in the context of these amendments. Given the scope of the contributions, I will perhaps begin by touching on one or two points that have been made by noble Lords in the debate.

The noble Lord, Lord Foulkes, referred to the content of the joint report and quoted, among other things, the phrase,

“the Agreement should also establish”.

The noble and learned Lord, Lord Wallace of Tankerness, did likewise, and referred to the passage about the bestowal of rights that will come with the conclusion of the withdrawal agreement. The noble Lord, Lord Haskel, referred to Michel Barnier’s recent draft—quite accurately, if I may say so. The noble Baroness, Lady Ludford, pointed out that the European Parliament will have to agree to the terms of any withdrawal agreement. That is self-evident.

In other words, these matters are prospective. Why are they prospective? I do not want to be overly technical, and I do not believe that I will be, but we begin with the duality principle of our law. That means that we enter into international obligations at the level of international law and they have no direct impact on our domestic law. For example, the withdrawal agreement will be an international treaty entered into by the Executive. We then implement or bring the rights and obligations of that international treaty into domestic law by way of domestic legislation of this Parliament. That is the duality principle: you have international law and you have domestic law, and you can only have the domestic law once you have the international treaty, because it is from the international treaty rights and obligations that you allow the domestic rights and obligations to be brought into our domestic law. What we have at the present time is a joint report from December of last year. We acknowledge that.

[Lord Foulkes of Cumnock]

It is not a treaty.

[Lord Keen of Elie]

It is not yet a treaty, if I can anticipate the noble Lord, Lord Foulkes, because the position of the EU has been, quite rightly, that there is no agreement until everything is agreed. This has been a staged process. We believe that it is important that we were able to achieve the first stage and that we were able to achieve consensus. It is perhaps better to use the word “consensus” here rather than “agreement”, which can be confusing and sometimes misleading. We have achieved consensus in a number of important areas and, as we carry that forward, we proceed into the negotiation of what will be an international treaty.

As we have said before, once we have that international treaty, we can then draw down from the rights and obligations of that international treaty into domestic law by virtue of the fact that we will bring forward a withdrawal agreement Bill for scrutiny by this Parliament.

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[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock]

Will the noble and learned Lord clarify a point raised earlier by the noble Lord, Lord Wigley? What is the position of citizens in Gibraltar?

[Lord Keen of Elie]

Gibraltar is an overseas territory whose people hold UK citizenship. However, if they do not retain citizenship of another EU country after Brexit, they will not be EU citizens.

[Lord Foulkes of Cumnock]

As I understand it, they can get a Spanish passport if they so wish, although I do not think that many of them do. Will they continue to be citizens of the United Kingdom and will they be eligible also to get EU citizenship?

[Lord Keen of Elie]

This seems to confuse a number of different issues because the parallels are the same as those in the Republic of Ireland and Northern Ireland. If you are a UK citizen in Gibraltar and you are also entitled to apply for and be granted citizenship of Spain, you will then hold dual nationality or dual citizenship, and as a citizen of Spain, for as long as it remains a member state of the EU, you will enjoy the right to EU citizenship. It is no different from the position in Northern Ireland and the Republic of Ireland. In the same way, the noble Baroness, Lady Ludford—perhaps referring to something she may have read in the Daily Mail—talked about people applying for citizenship of Malta in order to ensure they can maintain EU citizenship. This is how it happens, but the fundamental point is that you cannot be a citizen of the EU unless you are a citizen of a member state. That is written into the treaties.

It may appear—and it will almost certainly appear to the Chief Whip—that I have digressed slightly from some of the amendments; he will be watching. I just seek to touch on some of them. I hope I covered in my opening remarks some of the points made. Amendments 160 and 170 were tabled by the noble Lord, Lord Adonis, and Amendment 202 by the noble Baroness, Lady Smith of Newnham. Unfortunately, she was not here to speak to it, but it was referred to. As I have indicated, at the end of the day, we will have to conclude the negotiations in respect of the withdrawal agreement treaty and then draw it down into our domestic law. Tying Clause 9 to a particular outcome is not going to assist that.

The noble Earl, Lord Clancarty, moved Amendment 210. Again, I hope I have set out the Government’s position on this. We appreciate what we have achieved by way of the joint report, and we go on to the detailed negotiations in the hope it will effectively mean that we can confirm in domestic law not only the rights of EU citizens in the United Kingdom, but the right of UK citizens in the EU.

The noble Lord, Lord Haskel, moved Amendment 211, which details a requirement to keep equivalence with the EU on rights and protections. Again, this is prospective. We are addressing it in the course of negotiations and we hope to achieve it in many respects. In my view and in the view of the Government, it would not be appropriate to bring this into our domestic law.

Finally, we have Amendments 49 and 52, which I hope I have gone some way to addressing so far. The Bill aims to provide a stable and certain domestic statute book on exit day. That is its point, irrespective of the result of the negotiations and of any final agreement with the EU. Of course, once we achieve a final agreement, we fully appreciate that we are going to have to draw it down into our domestic law. Parliament will have an opportunity to scrutinise it.

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[Lord Foulkes of Cumnock]

My Lords, one of my comrades, if I may use that word in this place, commented that I was unduly brief in my introduction—or perhaps it was unusually brief; it was one or the other. That was because I stuck precisely to the terms of my amendment. The debate, however, has gone much wider than that. We have heard some powerful, passionate pleas on behalf of the rights of European Union citizens. We have heard them from colleagues on all sides of the House, and it is important to note that it is not just the opposition parties arguing this: support has come from the Cross Benches and from the Conservative Benches.

One of the ironies is that if European Union citizens has been given the right to vote in the referendum—they are taxpayers: “no taxation without representation”—as they were in the Scottish referendum, we would not now be going through this tortuous procedure. We would be getting on with running the country, looking after education, health, justice and all the things we should be doing as the sovereign Parliament.

My noble friend Lady Prosser put it very well: the reputation of the United Kingdom is at stake in all the matters that we are looking at today. The arguments put forward by my colleagues on behalf of all the amendments in the group were very powerful.

[Lord Bilimoria (CB)]

I thank the noble Lord for giving way. Could he add that European Union citizens will be allowed to vote in the forthcoming council elections in May?

[Lord Foulkes of Cumnock]

Indeed, and as I understand it, if I read the Evening Standard right, they are going to send a very strong message as far as London is concerned about what they think of this Government.

I conclude by saying that I wish I was learned as well as noble, like the noble and learned Lord, Lord Keen, because I would then be able to understand some of the detail rather more precisely.

[Lord Adonis]

Before my noble friend concludes, does he share my concern about what the Minister said about the difference between “consensus” and “agreement”? Does he agree that that is quite a significant statement on the part of the Government in the course of this debate? The only point in making the distinction, as I understand it, is that the Government do not regard themselves as fully committed to the terms of the “agreement” of last December.

[Lord Keen of Elie]

It is unusual for me to intervene, but I feel that if the noble Lord is going to make statements, he should make them accurately. If he is going to represent what a Minister has said, he should do so accurately. The distinction I drew was between an agreement that was now binding in international law and an agreement that was not now binding in international law. I hope the noble Lord’s recollection coincides with mine. If it does not, could he perhaps consult Hansard?

[Lord Foulkes of Cumnock]

It is a very interesting point, and the noble Lord, Lord Patten, highlighted it in his intervention. I wish that while he was speaking I had been able to translate “consensus” and “agreement” into Spanish, French, German, Italian, Portuguese, Welsh and so on to see whether there is a coincidence between one and the other. No doubt that is something that we can return to.

The Minister finished by saying that there is a time and a place, and that this is not the right time and not the right place for these amendments. There will be many more times and this will be the right place, and I look forward to speaking to the rights of European—

[Lord Kerr of Kinlochard (CB)]

Does the noble Lord agree that although on the legalities we have heard an extremely lucid explanation that in my view nobody could disagree with, delivered with all the noble and learned Lord’s customary charm, what we have not heard is any indication that anybody is aware of the reality in the outside world: that these people are choosing to go home? The people we need are going back because the Government are not giving them an assurance. These people believe that we agreed something in November. What we are seeing now in this intellectually fascinating legal debate is a total betrayal of their belief that we had agreed something. The pace at which people move away from this country—people who we need—will speed up if we do not get this right.

[Lord Foulkes of Cumnock]

I am obliged to the noble Lord, Lord Kerr of Kinlochard, for pointing out that although the Minister has all the legality behind him, perhaps his argument is lacking in humanity. It is humanity that the European Union citizens deserve, not the legality that we have heard.

I was about to conclude by saying that this may not be the right time but it is certainly the right place. I look forward to returning to this, and I know that many noble Lords who have spoken do also, to argue and to fight for the rights of not just UK citizens on the continent, who matter as well, but the European Union citizens who have given so much to this country over the years and continue to do so.

[Lord Mackay of Clashfern]

It is worth pointing out that these citizens have existing rights by law in this country, and that will remain the case until these provisions are repealed, if and when they are.

[Lord Foulkes of Cumnock]

The noble and learned Lord is a distinguished lawyer and had great distinction as the Lord Chancellor. Perhaps he can explain to the European Union citizens in Scotland, where he and I both live, why they were allowed to vote in the Scottish referendum but not in the European Union referendum. Many of them have asked me but I do not have the intellect or ability to answer them; perhaps the noble and learned Lord can.

[Lord Mackay of Clashfern]

That does not appear to be entirely relevant to the present debate and it is a bit late anyway. I had very little to do with the formulation of the franchise.

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[Lord Foulkes of Cumnock]

I think now it would be appropriate for me to beg leave to withdraw my amendment.

Amendment 49 withdrawn.

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[Lord Pannick (CB)]

My Lords, the two amendments in this group address the important question of the weight, if any, to be given to the judgments of the Court of Justice of the European Union which are delivered after exit day. Amendment 55 is in the names of the noble Lords, Lord Foulkes of Cumnock and Lord Adonis. Amendment 56 is in my name and those of the noble and learned Lords, Lord Goldsmith and Lord Wallace of Tankerness, and the noble Viscount, Lord Hailsham.

Amendment 56 would implement the recommendation of your Lordships’ Constitution Committee at paragraph 142 of our report on the Bill. After exit day, there is no dispute that our courts will make their own judgments on retained EU law. They will not be bound by judgments given by the court of justice after exit day. While judgments given before exit day will bind our courts up to the level of the Supreme Court, those given after exit day will not be binding. But our judges will wish to look at the judgments of the court of justice in Luxembourg delivered after exit day. That is not just because our judges are always interested, and rightly so, in seeing how courts in other jurisdictions address the same or similar issues. The connection here is much stronger. The retained EU law, which our courts will be interpreting, owes its origins to the institutions of the EU and there may be very good reasons for our courts looking carefully at how the court of justice has interpreted after exit day the same or a similar provision.

There are three problems with Clause 6(2) as currently drafted. First, it begins in a negative way by stating that a domestic court “need not have regard” to judgments delivered by the court of justice after exit day. That default position is unhelpful because it may be understood to suggest that our judges should not normally have any regard to post-exit day judgments of the court of justice.

Secondly, the end of Clause 6(2) allows the courts here to have regard to post-exit day judgments of the European court only if our courts consider it “appropriate to do so”. But judges do not look at foreign judgments because it is appropriate to do so; they look abroad for assistance because the foreign judgment is relevant to the issue that they are deciding. The terminology matters here. The use of “appropriate” wrongly suggests that our court will be making a policy choice to have regard to a post-exit day judgment from Luxembourg. Senior members of the judiciary have understandably expressed concern that if Clause 6(2) is left in its current form, the courts will inevitably be criticised for making a policy choice in this context.

I should make it clear that of course I do not speak for the judiciary, but I do speak to them. I can tell the Committee that many senior judges are very concerned about the content of Clause 6(2). Paragraphs 134 and 135 of the report of your Lordships’ Constitution Committee record the evidence that was given by the noble and learned Baroness, Lady Hale, the President of the Supreme Court, and her predecessor, the noble and learned Lord, Lord Neuberger of Abbotsbury, who I am pleased to see in his place today. The concern of the senior judiciary is not that judges should be shielded from criticism or that they are not tough enough to withstand it. The point is that confidence in the rule of law is undermined if judges are seen to be taking sensitive policy decisions that are for Parliament to make. Clause 6 therefore needs to make it much clearer that although our judges are certainly not going to be bound by Luxembourg judgments handed down after exit day, Parliament does intend our judges to have regard to judgments of that court given after exit day where they consider that those judgments are relevant to the issues before our courts.

The third defect of Clause 6(2) as currently drafted is that it suggests that the same principles apply to decisions of “another EU entity or the EU” itself. I am doubtful that there is any need to mention other EU entities or the EU itself, or certainly to compare them with the European court itself.

Amendment 56 seeks to address the issues in a manner which gives much clearer guidance to our courts. It would make it clear that our judges must have regard to a post-exit day judgment of the European court if the domestic court considers it relevant to do so. It would also add that in deciding the significance of any such post-exit day European court judgment, the domestic court should have regard to the terms of any agreement that is reached between the UK and the EU which it considers to be relevant. The terms of the withdrawal agreement, if and when approved by Parliament, will identify the relationship between the UK and the EU post exit day, and that will give considerable guidance to the courts.

I emphasise, however, that at all times under Amendment 56 and indeed under Amendment 55, it will be for the domestic court to decide on the significance, if any, of the Luxembourg judgment. There is no dispute over the fact that our judges will remain in charge in relation to post-exit day judgments. However, Amendment 56 would provide the guidance that they are seeking and which, I suggest, they are entitled to expect. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, there is little to add to the excellent introduction made to these amendments by the noble Lord, Lord Pannick, except to say that decisions of the other courts which currently have persuasive authority include those of the Judicial Committee of the Privy Council, decisions of higher-level foreign courts, especially in the Commonwealth and other similar jurisdictions, and one that I have a particular interest in, being a member of the Parliamentary Assembly of the Council of Europe; namely, decisions of the European Court of Human Rights, which under the Human Rights Act 1998 must be taken into account by UK courts. It is right that the European Court of Justice should have a similar role and persuasive powers.

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[Lord Hope of Craighead]

No, this is analysis. Let me explain what I would like to do.

I quite like the words of Clause 6(2) as it stands:

“A court or tribunal need not have regard to”,


a judgment or decision given by the European Court on or after the exit day because that fits very well with the way we are looking at the position before exit day. It is certainly true that it is a negative way of putting it, but I regard it as a helpful transition to the new situation. However, I do not like the remainder of Clause 6(2) for the very reasons that the noble Lord, Lord Pannick, explained. That is where I would like to bring in the passages from the latter part of his formula, which are that a court or tribunal may have regard to such judgments or decisions where it considers them relevant for the proper interpretation of retained EU law.

I would take out “appropriate” from Clause 6(2), for reasons that have been referred to already, and would leave out the early part of proposed new subsection (2A) in Amendment 56 where “must” is used. I would prefer “may” to “must”, leaving it to the court to make its own decision regarding whether the matter is relevant.

[Lord Foulkes of Cumnock]

Would Amendment 55 tabled in my name and that of my noble friend Lord Adonis not deal with the noble and learned Lord’s points?

[Lord Hope of Craighead]

I am very grateful to the noble Lord and I apologise for not having paid due regard to that formula because the wording is exactly what I am looking for, but I am trying to fit it into the opening words of Clause 6(2). However, it is certainly right; I respectfully suggest that “may” is the right word to use. It is better to add in the bit about,

“where it considers it relevant”,

which is what comes from the noble Lord, Lord Pannick. So one is putting together bits and pieces of thought from various attempts to produce a formula.

Perhaps I may read out again for Hansard’s benefit how I suggest the provision might run: “A court or tribunal need not have regard to a judgment or decision given by the European Court on or after exit day, but it may have regard to it where it considers this relevant for the proper interpretation of retained EU law”. If “may” is used—although the noble Lord, Lord Pannick, will correct me—proposed new subsection (2C) in Amendment 56 will no longer be relevant. I say nothing about subsection (2B) which may have force and value if the court requires guidance as to what to do with the agreement between the United Kingdom and the EU.

I hope that that contribution will give the Minister something else to think about. I think that we all hope that on Report he may be able to come back with a formula which we can all endorse.

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[Lord Adonis]

The word “relevant” does not, in any normal meaning of the word, mean legally relevant, any more than the word “appropriate” means legally inappropriate.

[Lord Foulkes of Cumnock]

My Lords, can I make a confession before we go further? I cannot claim credit for the wording of this amendment. The credit must go to Michael Clancy of the Law Society of Scotland—that is why it is better than I would have done. The Law Society of Scotland says that,

“‘persuasive authority’ is a recognised aspect of the doctrine of stare decisis or precedent. Persuasive decisions are not technically binding but the courts can pay special attention to them”.

I mentioned the three courts earlier: the Judicial Committee of the Privy Council, the Court of Human Rights and the supreme courts of Commonwealth countries. It seems to me to be a very good amendment, but I do not want to take credit for it, as that must go to someone else.