European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

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

My Lords, I begin by acknowledging the powerful maiden speeches delivered by my noble friend Lord Barwell and the noble Lord, Lord Mann, in whose speech there was nothing with which I could have possibly disagreed. I believe that every Member of this House would embrace both the content and sentiment that he expressed.

This Bill is of the highest importance and consequence for the country and is vital in delivering our withdrawal from the European Union at the end of this month. In opening, the noble Lord, Lord Newby, was candid and—I would venture—generous in acknowledging the position in which we stand since the general election. This Bill is not about whether or not we will leave the European Union; it is not about determining the terms of our departure from the European Union; it is not about the future relationship. The Bill ensures that the withdrawal agreement and the associated agreements under the EEA, EFTA and Swiss separation agreements are implemented in domestic law in order that they can be given full effect and thereby allow the Government to fulfil their obligations under international law.

I echo the sentiment of my noble friend Lord Callanan in acknowledging the work of all our Select Committees, including that of the Constitution Committee; the noble Baroness, Lady Taylor, indicated that it would deliver its report tomorrow, and we appreciate the speed with which it has addressed these matters. I also thank all noble Lords who contributed to today’s debate and discussion, although it will clearly not be possible for me in the time available between now and midnight to respond to each and every point that has been made.

The noble Earl, Lord Kinnoull, the noble Baroness, Lady Hamwee, my noble friend Lord Cope and other noble Lords raised the question of the prohibition the Bill places on the extension of the implementation period. The general election has clearly shown that the public want no further delay in our exit from the European Union, let alone potentially the 40 years’ delay of Exodus, as cited by the noble Lord, Lord Beith. The prohibition in this statute binds the Government to their manifesto commitment not to extend the implementation period beyond December 2020.

However, I reassure noble Lords that all parties have committed to using good faith to secure agreement on our future relationship by the end of 2020, and we will work with great energy to achieve this. Indeed, article 184 of the withdrawal agreement refers in particular to the obligations on all parties and, in turn, refers to point 135 in part five of the political declaration, where the parties themselves express the intention to have the agreement in force by the end of 2020.

The matter of citizens’ rights has been raised by a number of noble Lords, in particular by the noble Lords, Lord Newby and Lord Oates, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Teverson—I will come on to the particular point he raised in a moment. EU citizens in the United Kingdom are our neighbours, colleagues and workplace friends, and of course we value the contribution they make to the United Kingdom and wish them to remain here. We have already provided certainty to over 2.5 million people who have been granted status through the EU settlement scheme. The scheme is free, there is plenty of support for applicants, and they have until at least 30 June 2021 to apply to it.

I understand that the issue of presettled versus settled status has generated concern in some quarters. I make it clear that presettled status is a pathway to settled status, because those with presettled status can move straight to settled status by making an application once they reach five years’ continuous residence in the United Kingdom. I hope that puts some minds at rest. Indeed, we are taking a very pragmatic approach in trying to deal with applications, both of presettled and settled status. If an applicant needs to use the full five years of their presettled status, they will also receive an automatic reminder to apply for settled status before their leave expires. There is therefore no question of people being overlooked in this context. To that end, I understand that the Home Office’s automatic status checker uses the government database to help applicants secure the right form of status in a smooth and effective manner.

Reference was made by the noble Lord, Lord Teverson, and the noble Baroness, Lady Miller, to the status of UK citizens in the EU. However, that is of course not a matter of domestic law and is therefore not a matter for the Bill, which is intended to implement the international legal obligations which we have undertaken pursuant to the withdrawal agreement. Therefore, the status of UK citizens in the EU will be the subject of the future relationship negotiations.

Questions were asked, particularly by my noble friend Lord Leigh of Hurley and the noble Baroness, Lady Ludford, about the status of the IMA. I assure noble Lords that the Bill guarantees that the IMA will be fully independent of government. As the Bill sets out, the IMA will be run by an independent board and contain the appropriate expertise on citizens’ rights, and the Government will have no role in its day-to-day running or in its decisions. The noble Baroness, Lady Ludford, suggested that, pursuant to the provisions in Schedule 2 to the Bill, the IMA could be abolished. That is simply not the case. There can be a transfer of the IMA’s functions at some point, but those functions must be continued and carried on. After a period of eight years, it will be possible for the UK to negotiate with the EU on the matter of whether the IMA is still required, but the obligation to maintain it is one that we have undertaken in international law, pursuant to the withdrawal agreement, and one to which we as a Government will adhere. So, there is no question of the unilateral abolition of the IMA.

I listened to the concerns expressed across the House, particularly by the noble Lord, Lord Newby, in relation to the delegated powers in the Bill. The original sifting mechanism introduced in the EU withdrawal Act was a response to the exceptional circumstances we then found ourselves in. The situation now is quite different and it would not be appropriate to include a sifting mechanism in the Bill in this instance.

I listened also to the concerns expressed in relation to the power contained in Clause 21 to implement the protocol on Ireland and Northern Ireland. I also took note of the comments of noble and learned Lords on the DPRRC in this regard. But we in this space must be aware of what occurred in the other place and have regard to the response from the Government Benches to the concerns raised there. The Government have stated that providing certainty and reassurance to people and businesses in Northern Ireland is of paramount importance to them. The power contained in the Bill to implement the protocol provides that reassurance.

Furthermore, as my noble friend Lord Callanan pointed out at the beginning of the debate, the Bill’s approach to implementing the protocol is the best way to ensure that the United Kingdom can fulfil its international obligations and make the necessary arrangements to implement the protocol in the time available. Any other approach would risk jeopardising the Government’s ability to fully implement the protocol and would inevitably send a negative signal to both businesses and individuals in Northern Ireland. I hope that the House will agree that the fulfilment of these two aims—namely, ensuring that the Government can fully implement the protocol and reassuring businesses and individuals in Northern Ireland—should not be undermined.

Noble Lords asked about Parliament’s oversight of the future relationship negotiations. It was interesting to observe the different views that came from different sides of the House. For a while, many noble Lords expressed concern about the removal of parliamentary oversight. I believe that I noted both my noble friend Lord Bridges of Headley and the noble Lord, Lord Darling, expressing the view that, at the end of the day, negotiation of such matters as international relations had to be a matter for the Executive, essentially, and not one for Parliament to be directly involved in—albeit that, at the end of the day, myriad pieces of legislation will require to be approved by Parliament and put in place in order that the future relationship can be established and maintained.

The political declaration agreed by the Prime Minister as part of our exit negotiation sets out the framework for a comprehensive and ambitious free trade agreement with the EU. The general election result has clearly shown that the public support that vision and we consider that we have been given the mandate to begin negotiations on that basis. As the Prime Minister said in the debate on Second Reading in the other place, Parliament will be kept fully informed on the progress of these negotiations. Both Houses will have access to all their usual scrutiny tools, including Select Committees and the questioning of Ministers, and I have no doubt that the House will take full advantage of them. So, in these circumstances, we do not consider that there is a requirement for any additional statutory role. Furthermore, we are giving the EU Committee the ability to trigger debates on new pieces of law proposed by the EU that raise matters of national interest during the implementation period.

I turn now to the matter of unaccompanied asylum-seeking children, which was touched on by the noble Lord, Lord Dubs, and mentioned by a number of other noble Lords. Of course, concerns have been raised over family reunion for unaccompanied asylum-seeking children. I wish to make clear that the Government are fully committed both to the principle of family reunion and to helping and supporting the most vulnerable children. The Government, as my noble friend Lord Callanan observed, have a record of providing protection for vulnerable children, receiving 15% of all asylum claims from unaccompanied children in the EU.

Clause 37 does not represent a change to that existing government policy. It removes the statutory requirement to negotiate. This is appropriate as the Government have demonstrated their intentions by already writing to the European Commission to commence negotiations on this issue. It is vital that the Government are not legally constrained in those discussions. We are restoring the traditional division of competence between Parliament and the Executive when it comes to international negotiations. This clause fulfils the essential function of allowing us to continue negotiating a comprehensive agreement and rightly ensuring that Parliament is informed of the Government’s policy intentions in respect of our future arrangements.

I shall move on to deal with the question of the case law of the CJEU. I have noted the concerns that have been expressed here. While clearly EU case law is a defined body of law, it is important that our courts are not eternally bound by historic decisions of the EU Court of Justice after the implementation period has expired. Let me provide some important points of reassurance. First, the approach that we have taken is consistent with our international obligations. Clause 26 already provides for how the separation agreements must be interpreted and nothing that we do here will cut across that. Secondly, we want to approach this matter in a sensible way.

Let me be clear that there is no intention to extend the divergence from retained EU case law to every court and tribunal in the United Kingdom. We must consult with the senior judiciary before making any regulations, and the clause provides for the Minister to consult with others as is appropriate. What we intend is that the power will be used to ensure that retained EU case law is a living law rather than one preserved in aspic. There will be legal clarity at the point when any case concerning this body of law is heard. The power can be used only until the end of the implementation period, and the courts will be interpreting retained EU law only after that period. So we have the period of the implementation time in which to address this issue and it will then apply from the expiry of the implementation period. But I repeat that there is no intention on the part of the Government to extend the power to every court and tribunal in the land. We recognise the uncertainty that would be a consequence of such a move.

I turn to matters pertaining to devolution, which arose in a number of different contexts. First of all, the noble Duke, the Duke of Montrose, raised questions about the CAP and an agriculture Bill. I assure noble Lords that the CAP will continue to the end of the implementation period, by which time we will have taken forward the agriculture Bill. The noble Duke also referred to the frameworks, and perhaps I may remind noble Lords of the importance of these frameworks in the context of our relations with the devolved Administrations. Between October 2017 and March 2018, we published what was termed a common frameworks analysis, which set out about 153 areas in which EU law intersected with devolved competence. After discussion we have reduced that number, but have carried on an analysis of these areas with the devolved Administrations and continue to work closely with them on these issues.

One example of that is fisheries, which have already been mentioned in this debate, where we proposed a new UK framework to ensure access for UK fishing fleets throughout UK waters. That has been taken forward through discussion with the devolved Administrations and has been governed by principles agreed at the joint ministerial conferences. I give the detail of that just to underline the extent to which we are engaged with the devolved Administrations in this context.

As was suggested early on, the engagement between the UK Government and the devolved Administrations over the Bill has been rather unusual, because the recommendations coming back from the devolved Administrations have been principally concerned with reserved matters. The devolution settlement involved the reservation of specific matters to the United Kingdom Parliament. It was never intended that in the conduct of such reserved matters—for example, international affairs—the United Kingdom Parliament could be inhibited or frustrated by the devolved Administrations. That would not be normal under our devolution settlement, and that is reflected in the terms of the Sewel convention. For our part, the Government have followed the spirit and letter of the devolution settlement throughout the process pertaining to this Bill. The engagement of the devolved Administrations—

[Baroness Hayter of Kentish Town]

Does the Minister accept that while the negotiations may indeed be for reserved matters, in many cases the implementation is not reserved? That is why they are particularly worried about the lack of consultation.

[Lord Keen of Elie]

There are clearly circumstances in which the implementation of the withdrawal agreement will impact on the scope of executive competence of the devolved Administrations, and they are well aware of that, but those are not the issues they have sought to address with the UK Government in this context. They have sought to address matters that are reserved. As I say, the fundamentals of the devolved settlement, going back to 1998, never intended that where the UK Government were exercising a reserved function they should be inhibited or prevented from doing so by the devolved Administrations. It is important to bear that in mind.

As I say, we consider that we are taking appropriate steps to engage with the devolved Administrations, and we will continue to do so. Indeed, we continue to hope that the Welsh Government in particular will reflect on this and revise their recommendations to the National Assembly on legislative consent. At the end of the day, what we are doing here is implementing an international treaty obligation; that is the role of the United Kingdom Parliament.

I will now touch on one or two additional points in the limited time remaining. The noble Baroness, Lady Thornton, raised a number of issues with regard to health. Clearly, nothing is going to change before the end of the implementation period, and thereafter it will be a matter for the negotiation on the future relationship. It is not a matter for this Bill, which is intended to implement the present withdrawal agreement. She also made reference to the clinical trials directive. I should observe that the new EU clinical trials directive has not yet been adopted, so we do not even know where the EU will be with regard to that. Of course, once we do know, it may form the subject of negotiations on the future relationship.

The noble Baroness, Lady Crawley, made a powerful point that, after 46 years of being subject to EU law, women have still not secured equal pay. I certainly hope that we will do better after we leave the EU.

The noble Baroness, Lady Parminter, referred to animal welfare. At the moment, we cannot prohibit the movement of live animals because of EU law. But when we leave, let us hope that we can address that, because we have expressed an intention to do so.

The noble Baroness, Lady Donaghy, referred to UK worker rights. I notice that, in many respects, UK worker rights are much higher than the norm within the other EU 27 states. One has only got to consider such issues as paternity and maternity leave, and other related issues, to appreciate that what we may hope for after exit is that the EU is able to catch up with us.

I look forward to tomorrow’s Committee stage, where we can enter into more detailed scrutiny and debate on the issues that have been raised today. This Bill ensures that we honour the result of the 2016 referendum and leave the EU on 31 January, on the terms of the withdrawal agreement. It ensures that the agreements have full effect in domestic law and that, accordingly, the Government can discharge their obligations in international law.

Once the Bill is passed and the withdrawal agreement ratified, we will proceed to the completion of a free trade agreement with the EU by the end of December 2020. We can then go on to focus on other national priorities, such as the National Health Service, education and skills, and ensuring that we make our country safe. I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.

European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord McNicol of West Kilbride]

No, it is. The noble Lord is correct.

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

I should correct the noble Lord. Amendment 59 is part of this group, and therefore if he wishes to speak to it, he should do so.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I confess my inexperience in this court of Parliament in knowing whether it is the right opportunity to raise Amendment 59. I will do so. This may seem a very small point, but it goes to two points that underlie the amendments to which we will turn in due course. The first is the need to ensure that the Bill respects our constitution as regards devolution and that the devolution statutes that form part of our constitution are altered in a proper and constitutional manner. Secondly, going forward with our life outside the European Union, we achieve a stronger union by making sure that there is the closest possible working together of the devolved Governments, Assemblies and Parliaments with the Government at Westminster.

Although the amendment is addressed to deal with the position in Scotland, Northern Ireland and Wales together—logically it has to be—I approach this from the standpoint of Wales, for two reasons. First of all, my own experience of that devolution settlement is much clearer than my experience of the others. Secondly, I really think it of importance that in this House we try to do all we can to make sure that Wales, the Welsh Government and the Welsh Assembly understand that the union will work for the future as envisaged in the devolution statutes.

It may seem that devolution is not that important at this time in the context of this Bill, and I can well understand that view. But it is important to reflect for the future and to realise that much will need to be done to the way in which devolution operates when we are outside the European Union and with our own internal market. Those are the general points that underline my seeking to make this amendment.

The purpose of the amendment is to ensure that the principles agreed in respect of the IMA’s composition, as set out in the schedule, are carried forward in the event that a new body is created pursuant to the powers that have been added to the Bill. As regards the obligation to appoint the non-executive members of the IMA, provision is made in the Bill that the Secretary of State will appoint those with experience in relation to Scotland, in relation to Wales and in relation to Northern Ireland, who understand how the systems there work. This is plainly a proper and right provision as, over the past 20 years, as any examination of the detailed operation of devolution will show, things have changed. I find it sometimes regrettable that those who occupy the ministries in Whitehall do not realise the extent of that change. I therefore appreciate what the Government have done through this provision and the further discussions they have had of the role of the Welsh Administration and Welsh Ministers in the selection of the appropriate person. However, the provision is not carried forward if the functions of the IMA are transferred to a new body.

I accept that it is a small point, but small points can go a long way to ensure that the spirit of devolution and the constitution is respected. Of course the Government can say that there will be no change, no statement made and no clarification, but would that be wise? With the utmost respect, I suggest that it would not be wise because it would point out that even a small change that can capture the spirit of the way forward is something that the Government will not contemplate. On the other hand, if some assurance were given about any future transfer to a new body, is not that the first step in showing that the spirit of a post- devolution UK will be respected by this Government?

--- Later in debate ---

[Lord McNicol of West Kilbride]

My Lords, I rise to speak to Amendments 58 and 60. The noble Lord, Lord Greaves, has touched on many of his probing amendments, and there has been much debate about Amendment 59, so I do not need to cover that.

The establishment of the independent monitoring authority is an important step in implementing the UK’s obligations to EU citizens under the withdrawal agreement. However, the Government’s approach to the IMA leaves a number of important questions unanswered, hence the large number of probing amendments in this and other groups. There are concerns regarding the delegated powers, allowing Ministers to transfer the IMA’s functions—or even wind the organisation up—by statutory instrument, hence the amendment in my name.

At ministerial briefings, the Minister has explained that, later in the withdrawal process, it may make sense for the IMA’s functions to sit elsewhere. Can the Minister give an example of where those functions may be moved to, and why this would be preferable to maintaining an independent body? Can he also confirm that in the event of such transfers there will be no practical impact on citizens? Finally, can he provide assurances that, in the spirit of co-operation, the Joint Committee will be fully briefed regarding any changes to the IMA or the exercise of its functions? To touch very briefly on Amendment 59, in the name of the noble and learned Lord, Lord Thomas, again many important issues are raised regarding the transfer of functions, aiming to ensure that the new executors of such functions would need specific knowledge of UK nations and the regions.

[Lord Keen of Elie]

I am obliged to all noble Lords who have contributed. Like many noble Lords who have already spoken, I am conscious of the sensitivities that surround the devolved settlement that could impinge upon its success in the future.

Let us be clear: Clause 15 is essential to implement our international legal obligation under the withdrawal agreement and under the EEA-EFTA separation agreement, which requires that we establish an independent monitoring authority. I hope that it also demonstrates our commitment to protecting the rights of those citizens covered by the agreements. Therefore, it is necessary for Clause 15 to stand part of the Bill.

Of course, the IMA will offer an important layer of additional protection over and above the wide range of complaint and appeal routes that already exist for EU citizens in the United Kingdom. However, expanding the IMA scope through Amendment 57—as proposed by the noble Lord, Lord Greaves—would, I fear, divert the body’s resources from its important role monitoring citizens’ rights and obligations. Therefore, I would resist such an amendment. It also risks creating unhelpful duplication, with all the confusion and wasted resources that could accompany that, so I invite the noble Lord, Lord Greaves, to withdraw that amendment.

The withdrawal agreement requires that the IMA be established by the end of the implementation period; that is the goal. The appointment of an interim chief executive to the IMA—a point raised by the noble Lord, Lord Greaves—is considered vital to meeting that deadline, as it will be essential from the point of view of staffing and procurement decisions that will need to be taken in advance of that date. Indeed, there have been other examples of interim chief executives being appointed to such bodies in order that suitable preparation can be made for them to be up and running at the appropriate time. Removing that provision through Amendment 47 would jeopardise the timely establishment of the IMA, and risk putting us in breach of our international law obligations. I hope that I have explained the rationale for that approach.

In order to give full and proper effect to our obligations in international law, we have designed the IMA to be robust and independent, in line with the best practice for the establishment of new public bodies. While I understand the intention behind a number of the amendments in the name of the noble Lord, Lord Greaves, which he perceives as strengthening the independence and robustness of the IMA, I hope I can assure him that they are unnecessary. I appreciate that they are essentially probing amendments in order that we can explain the position.

[Lord Kerr of Kinlochard]

Perhaps I may probe a little further. The independence of this authority is important—important because we have agreed to introduce an independent authority and important to those whose affairs it will be keeping an eye on.

When I was a Permanent Secretary, I would have had no difficulty in coming to the conclusion that a number of non-departmental bodies could be abolished and their functions transferred elsewhere because it would be more efficient, effective and economical to do so. The test in paragraph 39(2) of Schedule 2 is not hard for the Executive to meet. Does the Minister think that the body is more likely to be independent, feel independent and be seen as independent if it is continually under the threat of the sentence of death in paragraph 39(1), which says that its powers can be transferred? I agree that it is a habit for quangos to survive long beyond their natural useful lives, but what is the rationale for this power transfer by regulation? Is the Minister convinced that the test of efficiency, effectiveness and economy does not slightly conflict with the requirement for independence?

[Lord Keen of Elie]

My Lords, the noble Lord perhaps anticipates what I shall come to in the course of my reply—how prescient he is in that regard.

The body is not under a sentence of death and the rationale for the ability to transfer was hinted at by the noble Lord when he talked about bodies that had long outlived their usefulness. I will elaborate on this point in a moment, but I certainly do not consider that the provisions of paragraph 39 impinge on the effective independence of the IMA. I would add—I will elaborate upon this—that we must have regard not only to the intentions of the Executive but to the joint committee and, therefore, to the interests of the other party to the international agreement that has given birth to the IMA.

Let me continue with the point I was about to raise on some of the further amendments spoken to by the noble Lord, Lord Greaves. First, on Amendments 52 and 53, which seek to remove certain standard provisions for remuneration in respect of public bodies, he alluded to the term “gratuity”. There are circumstances in which public servants are brought into a body but, for one reason or another, their position is terminated early or prematurely and consideration has to be given to the question of gratuities. Where public servants are already employed in a position where they can be remunerated and there is a provision for gratuities to attract suitable employees into bodies such as the IMA, one must generally have regard to equivalence of terms and conditions. Therefore, because that appears in the context of other public bodies, it is repeated in the context of this legislation.

Amendment 54 would remove provisions that provide a proportionate and sensible way of approaching potential conflicts of interest for IMA members. At all times those members will be expected to adhere to the Cabinet Office Code of Conduct for Board Members of Public Bodies, and the approach set out in this paragraph in its unamended form is consistent with the code. For example, an individual member may make a subjective decision that they should disclose a conflict of interest but the board may determine objectively that it is not a pertinent conflict of interest and that they can therefore continue. That is why the matter is expressed in those terms.

The Government also expect the IMA to follow best practice in relation to its own transparency. Therefore, we regard Amendments 55 and 56 as unnecessary. Indeed, amending the Bill in the way proposed by the noble Lord, Lord Greaves, would take decisions around its transparency away from the IMA and thus, essentially, undermine its status as an independent body. We regard the IMA as essentially an independent body but, while enjoying the status of an independent body, it must be able to discharge certain functions as it sees appropriate, albeit while having regard to the relevant codes.

There is also a reference to not charging for the body’s functions in Amendment 61. That is unnecessary because this body will not charge for its functions. They are essentially systemic—as the noble Lord, Lord Greaves, appreciated, it is not a case of individual applications and individual disposals—and there is no room for any form of charging. Again, we feel it is unnecessary to consider that amendment.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, important though the IMA will be in providing additional assurances that citizens’ rights will be protected, we do not expect its functions to be required in perpetuity. Indeed, the withdrawal agreement recognises that reality. Years from now, it might be more appropriate and effective to protect these rights differently. It is for this reason that we have included two powers in Schedule 2: one to transfer the IMA’s functions to another body under paragraph 39 and the other to remove or abolish the IMA’s functions under paragraph 40, but only following a decision by the relevant joint committees to do so.

As noble Lords have appreciated, the first power is about future-proofing to make sure that citizens’ rights obligations are monitored as effectively and efficiently as possible in the future. Indeed, years from now, the type of oversight needed for the UK’s citizens’ rights obligations and the wider UK regulatory landscape may have changed materially from what it is today, and in such new circumstances it may be more appropriate and effective for another public body to perform the IMA’s role. Removing that power, as would be required by Amendment 58, spoken to by the noble Lord, Lord McNicol, would make us less capable of ensuring that we are in a position to provide an efficient and effective monitoring of citizens’ rights and obligations.

In any event, we would be sure to keep the EU and the EEA EFTA states appropriately informed of any decision to transfer the IMA’s functions. Again, that would be by way of the joint committee and would not involve some unilateral executive action by the UK Government. Indeed, if this power were ever used, we have ensured that it would not affect the independence and effectiveness of how citizens’ rights obligations are monitored. The Secretary of State must have regard to the need for the transferee to possess the necessary independence and resources to provide effective oversight of citizens’ rights obligations.

Let me reassure the House that the commitments we have made to the devolved Administrations about their role in the Independent Monitoring Authority will be upheld in the event that its functions are transferred to another public body. We have designed this power so that the Secretary of State can make any modifications that he considers appropriate to the constitutional arrangements of the transferee. This will ensure that an equivalent to the important role of the devolved Administrations in the IMA is replicated for the transferee. I hope that reassures the noble and learned Lord, Lord Thomas of Cwmgiedd—I apologise if I have mispronounced the Welsh—and other noble Lords that, in these circumstances, Amendment 59 is unnecessary.

As I indicated, we have included a second power to abolish the IMA, which can be exercised only following a decision by mutual consent through the relevant joint committees, comprising representatives of the UK on the one hand and the EU and EFTA states on the other. This power can do no more than give effect to a decision at the international level. It cannot be exercised following a unilateral decision by the Secretary of State or the Executive. We would give extremely serious consideration to any decision to agree to abolish the IMA and I am confident that the EU and EFTA states would do likewise.

[Lord Wigley]

Will the Minister also confirm that if we were to find ourselves wanting to propose such a change to our former European colleagues there would have been consultation with the devolved authorities before that stage?

[Lord Keen of Elie]

My Lords, it is of the nature of the IMA’s function that it involves consideration of the views of the devolved Administrations and Gibraltar. It also involves consideration of the interests of those in England. We have to have regard not only to Wales, Northern Ireland and Scotland but, in this context, England and Gibraltar. It would be appropriate to consider all their interests if we were to put forward a proposal for the abolition of the IMA. Indeed, I find it difficult to conceive of a situation in which we could put forward a proposal for the abolition of the IMA at the joint committee without having consulted the devolved Administrations. It strikes me as so improbable that one should not give much weight to it.

[Baroness Finlay of Llandaff]

I hope the Minister will forgive me interrupting. I was wondering whether I would wait until the end of his remarks, but this follows on from the question asked by the noble Lord, Lord Wigley. In the event of the transfer to another body and a view that the IMA could be slimmed down, can the Minister provide assurance that the required consultation of the devolved Administrations would happen—with the devolved Administrations having a say rather than it being tokenistic consulting; I am not asking for a veto—and that there would be no possibility of them then being charged in any way or being requested to provide financial support for having as a member somebody who had particular knowledge of their area, whether it is Wales, Scotland, Gibraltar or Northern Ireland?

Can the Minister explain to me—this is my ignorance —why paragraph 39(1)(b) of Schedule 2 is in italics and the other parts of the Bill are not? Is there some significance to it being in italics?

[Lord Keen of Elie]

My Lords, I am not immediately aware of the significance of the italics, but no doubt someone will pass me a piece of paper in a moment that explains them—or not, as the case may be.

We have not yet determined the cost—this also responds to a point made by the noble Lord, Lord Greaves—or budget requirements for the IMA. I therefore cannot comment further on that. The obligation to ensure that it is fully and properly funded lies on the Secretary of State and therefore on the UK Government. What further or future negotiation there might be about cost sharing is a matter beyond the terms of the Bill. I would imagine that if we start with an obligation that lies with the Secretary of State and the UK Government it will not easily be transferred in any form to the devolved Administrations. Perhaps one day we will have a reverse Barnett formula, but we do not have one at present.

In the circumstances I have set out I hope it will be appreciated by the noble Lord, Lord McNicol, that Amendments 58 and 60 are not required in this context. The approach that we take to exercising the powers with regard to the IMA will be proportionate and appropriate and it would therefore not be necessary or appropriate that the procedures in the Public Bodies Act 2011 should apply. The bodies to which that procedure usually applies are those established on the basis of domestic policy. It will be appreciated that this is a rather different body which is the product of an international agreement and therefore it has to comply with the obligations we have entered into at the level of international law and it should not be tied to domestic legislation.

On the noble Baroness’s observations about the italics that appear in the Bill, it may well be that she alighted upon an issue that may arise later in the day, but I am advised very clearly that it is a misprint. Apparently, the entire Bill should have been in italics.

I have sought to reassure noble Lords about the concerns that have been raised and which have motivated these amendments. We have sought to design the IMA to provide robust, effective and fully independent oversight of citizens’ rights and our commitment to citizens’ rights. It is necessary to bear in mind that we are implementing international law obligations that we have incurred by entering into the withdrawal agreement. The clause and the schedule in their present form meet those international obligations and the demand for robust, effective and fully independent oversight of citizens’ rights and obligations. I hope that noble Lords will not press their amendments.

[Lord Greaves]

My Lords, I am very grateful to the Minister for the time and effort he has taken to go through all the points raised and, I think, to give us a certain amount of new information or extra information about how the IMA will work and about the Government’s thinking on it. This debate has been valuable. I am grateful to everybody who has taken part, and particularly for the snapshot we have had of the devolutionary thinking among Welsh Members of the House. I found it very interesting and useful.

The only question the Minister did not answer was about whether the IMA is going to be based in the north of England. Perhaps that is beyond his pay grade —I think he agrees with that.

European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, I too am not a lawyer, and I will not even attempt to add to the legal arguments, which have been so well set out by the noble and learned Lords, Lord Woolf, Lord Judge, Lord Thomas of Cwmgiedd and Lord Brown of Eaton-under-Heywood, as well as by the noble Lord, Lord Beith, and others, as to why any decision on the interpretation of retained EU law should be taken at Supreme Court level, as envisaged in the 2018 Act, and why ministerial regulations are simply not appropriate in this matter.

I will say three things. One is that it is a really bad way to make law suddenly, with such a clause, with no consultation either with the judiciary—if this was the consultation that has happened today, I think we can take it as, “No thanks”—or, indeed, with the devolved nations, which we discussed earlier. I will answer the question put by my noble friend Lady Taylor about what the Government have in mind. At a briefing, it was very clear that they already had something in mind, a sunset clause at the end of this year, and my answer is simply that there is something that is not oven-ready at the moment that is waiting to come in. There is a closed envelope somewhere, and it is appropriate that we should be told what exactly is in it, so perhaps we could hear about that later.

Secondly, as the noble and learned Lord, Lord Mackay of Clashfern, has said, Clause 26 could result in the divergence of approach within and between the jurisdictions of the UK on matters where a common approach is essential: things that are fundamental to our UK-wide single market. On Monday, the noble Duke, the Duke of Montrose, recalled that for 40 years EU legislation

“ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing … in Scotland and … the devolved Administrations.”—[Official Report, 14/1/20; cols. 530-1.]

Harking back to the earlier discussion about the all-United Kingdom economy, this seems a crucial issue. Allowing lower, non-UK-wide courts to interpret the regulations that the noble Duke, the Duke of Montrose, mentioned, environmental matters, as raised by the noble Baroness, Lady Jones, or VAT or duties, which the noble and learned Lord, Lord Judge, mentioned, could open a wide door to divergence on issues within our own single market.

Thirdly, there is obviously a fear that this provision risks undermining workers’ rights, given that the political declaration makes no mention of the rights previously protected by the European Charter of Fundamental Rights and its key principles which have found their way into EU case law. Employees in the UK benefit from the ECJ’s sometimes more generous interpretation of employment rights, such as the right to paid holidays, the requirement for employers to keep records of hours worked to comply with the working time directive, and the ruling as to whether overtime is factored into holiday pay. These have been essential and are now part of UK law—of course via case law. Without a guarantee to uphold the body of case law on workers’ rights, the Prime Minister’s commitment to protect our employee rights after Brexit will sound more hollow than any chimes of Big Ben, whether on 31 January or any other day.

Clause 26, which has been dropped in with no rationale, prior debate, consultation or Green Paper, diminishes the Bill while introducing uncertainty into our laws. It has no place here. We will seek to remove it, although, as other noble Lords have said and as the noble and learned Lord, Lord Mackay of Clashfern, urged, it would be much better if the Government were to do this.

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

My Lords, I am obliged to the noble Lord, Lord Beith, for moving the amendment in the name of the noble Lord, Lord Pannick. I will seek to offer some explanation and reassurance with regard to the clause in question.

As has been noted by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we are concerned here with retained EU law. For clarity, Clause 26 draws a distinction between retained EU law and relevant separation agreement law, which is applicable as a consequence of the withdrawal agreement and is untouched by any of these proposals, given our international law obligations. Retained EU law will form part of the law of the United Kingdom. It is then a question of how we approach the interpretation and application of that law, which, in turn, takes us to the question of precedent and the binding force—at present—of decisions of the Court of Justice of the European Union in this context.

Provision has already been made, pursuant to Section 6(5) of the 2018 Act, to confer upon the United Kingdom Supreme Court the power to depart from previous decisions of the Court of Justice of the European Union. The idea that one can depart from such a body of case law is hardly novel. It has been a feature of common law since at least the 1960s, when the judicial committee of the House of Lords expressed its intention to depart from previous case law as and when it felt it was necessary to do so. Therefore, we are not, as it were, moving into novel territory in this context.

The intention behind this clause is to give a power to make regulations to ensure that the United Kingdom courts are not inappropriately bound by retained EU case law as part of the body of United Kingdom law after we have left the European Union. It goes no further than that. These courts may choose to follow that case law, but the point is to ensure that they are not bound to do so in circumstances where they form a view that it would be inappropriate to the development of UK law for them to do so.

The Government are sensible in the manner in which they will seek to exercise the regulatory power. The Bill requires that Ministers must consult the senior judiciary across the whole of the United Kingdom before making any regulations, and indeed may consult other appropriate persons, and any regulations will be laid before Parliament under the affirmative procedure. Those safeguards are clearly in place.

We want to ensure that United Kingdom law after we leave is consistent and clear. The power will be employed in a way that is consistent with our own constitutional norms and traditions: judicial independence, the doctrine of precedent and the separation of powers. Any regulations will respect these long-established principles but will also allow that retained EU case law is not the sole preserve of the court of final appeal, be it the United Kingdom Supreme Court or, in the context of criminal matters, the High Court of Justiciary in Scotland.

[Baroness Hayter of Kentish Town]

The Minister says that this will be done under the affirmative procedure. Should that come here, we have always had the right to negate such an order. However, should this House do that, given the advice it has had, it would not be challenged as a constitutional outrage but would be a proper use of this House’s power.

[Lord Keen of Elie]

It would always be a proper use of this House’s power, albeit there are constitutional norms that apply. However, it is not just this House; the House of Commons would also have the opportunity to address the terms of any regulations. I have no doubt that, having regard to our constitutional norms, this House would have regard to the determination of the House of Commons on that point, but would not be absolutely bound by it. I fully accept that.

[Baroness Ludford (LD)]

The Minister has just said that this would improve consistency. How can it improve consistency in the interpretation of law if you potentially have a proliferation of lower courts that can all reach different judgments? The import of the objections made in the last hour is precisely that having just the Supreme Court, and the High Court of Justiciary in Scotland, is much more a recipe for consistency than what the Government are planning.

[Lord Keen of Elie]

That is one view as to how we might achieve consistency. However, as the noble Baroness, Lady Ludford, will have noted from the contributions made by a number of noble Lords and noble and learned Lords—in particular the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble and learned friend Lord Mackay of Clashfern—there are diverse views as to how this could be achieved.

For example, one view is that the power should rest only with the Supreme Court and the High Court of Justiciary but that there should be a reference process. Another view is that the power should be conferred upon the Court of Appeal, a lower court, or the Inner House in Scotland, because that would assist the Supreme Court as and when it came to consider the matter, and speed up the whole process of determining the issue. There are diverse views, as is reflected in the report of the Constitution Committee, as to how this could best be achieved. That is a very compelling reason for taking this regulatory-making power in order that, with the appropriate consultation, we can come to a suitable consensus as to how this is best done in the future. We can then allow for flexibility.

I stress that if, for example, we left the power purely in the hands of the United Kingdom Supreme Court, that might assist in consistency of decision-making—I will come back to the question of precedent in a moment—but it would put immense pressure on the Supreme Court itself and potentially create significant delays for litigants. Given that, it would not be a recipe for certainty; rather, it would be a recipe for uncertainty.

As I say, there are diverse views on how we can best achieve the result that we are all seeking. That is why it is appropriate that we should pause, take the matter forward by way of regulation, consult with the appropriate parties and then determine the best means of doing this. That will have to be resolved before the end of the implementation period.

At the end of the day, the power can be used only to determine which courts can depart from retained EU case law, the circumstances where they may do so and what test may be applied in doing so. It will not be used to set out how the courts are to interpret retained EU case law, because that is a matter for the independent judiciary, and it will not determine that courts may not follow established EU case law.

The noble Lord, Lord Anderson of Ipswich, made a number of points about unleashing uncertainty. With the greatest respect, Section 6 of the existing 2018 Act already provides that the Supreme Court may depart from established EU case law, although it may take significant time before it comes to address a particular question in a particular case. There is, therefore, what he referred to as “uncertainty with effect from now” if we proceed purely on the basis of Section 6.

--- Later in debate ---

[Lord Beith]

Can the noble and learned Lord tell us at what level of court he thinks it would be inappropriate to extend these powers, and would that level embrace all those courts which do not have a precedent-creating capacity?

[Lord Keen of Elie]

As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.

I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

[Lord Howarth of Newport]

How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?

[Lord Keen of Elie]

I do not consider that this clause in any sense violates the principle of the separation of powers.

[Baroness Hayter of Kentish Town]

Given that that Minister has not answered my noble friend’s question and given that there is a sunset clause on this, there must be something ready to go. Can he not explain what it is?

[Lord Keen of Elie]

No. What is ready to go is a consultation process. That is why we have not reached a conclusion. The noble Baroness, Lady Taylor, asked two questions, the first of which was, “Are the Government going to use this power?” We are going to use it in order to consult with appropriate parties. May I give examples? Examples have been given by noble and learned Lords. One example is a reference system to the Supreme Court. Another example is to extend this power to the Court of Appeal. That is what we want to determine by virtue of the consultation process we wish to take forward.

[Lord Newby (LD)]

Is the Minister saying that when the consultation goes out, it will in effect be saying, “Give us a clue as to what you think makes best sense because we haven’t the faintest idea ourselves”? Are the Government going to express no thoughts about what might be preferable? Have they had no thoughts? Have they not thought about it before now? In every other aspect of Brexit, the Government have clear, dogmatic, unwavering thoughts. On this single one, they appear to have no thoughts at all. Is that not strange?

[Lord Keen of Elie]

My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.

[Baroness Taylor of Bolton]

Will the Minister answer the point raised about the policy areas the Government have in mind where they could use these powers?

--- Later in debate ---

[Lord Keen of Elie]

It is not a question of having policy areas in mind. We want to take forward a consultation process that will enable us to arrive at an appropriate conclusion as to how we should look at EU case law as a part of retained EU law after the implementation period has expired.

[Lord Mackay of Clashfern]

My Lords, I understand that the first part of the amendment may be reasonably accommodated within the answer given to the previous question about separation of powers. I cannot see how the second part can be accommodated—formulating the question the court has to decide in deciding whether the previous decision of the Court of Justice of the European Union should be followed.

[Lord Keen of Elie]

With respect to the noble and learned Lord, we seek to consult on the appropriate test to be applied in taking this matter forward. We intend to do that in consultation with the senior judiciary.

[Baroness Hayter of Kentish Town]

My Lords, given that the existing law has now been in place since 2018 and all that time could have been used for this consultation, why has this suddenly gone in now with the power to make changes by ministerial decision? If it was not felt at the time that the 2018 position was correct, why has this consultation—which could take place without an Act of Parliament—not already taken place?

[Lord Keen of Elie]

My Lords, in the interim there had been certain distractions, including a general election—the outcome of which the noble Baroness will be familiar with.

[Lord Brown of Eaton-under-Heywood]

My Lords, may I just be clear? When in future the High Court, say, is given this power to exercise what currently under the practice direction is only for the Supreme Court, will it not merely be saying that we will not follow this precedent from the European Court of Justice, but declaring retrospectively that it was wrong all the time? Or will it be saying in this particular case that we are not going to follow that principle but in all other cases—cases pending, appeals and so forth—we will? In other words, will there be the retrospectivity we now have under the practice direction, with the court declaring what the law in truth is and saying it was wrongly understood before; or is it merely to be, as legislation has it, that this will be the law in future—we are changing it?

[Lord Keen of Elie]

That matter will have to be addressed in the context of the regulations that are to be made, but those are the two options available. You can either proceed upon the basis that has pertained since the 1960s, which is, as we have stated, the law as it has always been, or say that the law is about to change. I make the point again that what will be provided for is the circumstances in which a court is not bound by EU case law. It will not be a circumstance in which they are told they are not allowed to follow EU case law; it will be open to them to do so if they wish.

European Union (Withdrawal Agreement) Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting (Hansard continued) & Committee stage & Committee: 3rd sitting (Hansard continued): House of Lords
Thursday 16th January 2020 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, as we have been told, Clause 38 is essentially meaningless. It is declaratory, I think it was said; a sop to the ERG. Indeed, the Explanatory Memorandum makes clear that the clause makes no material difference to the scope of Parliament’s powers.

However, it is not just neutral. The problem, as we discussed on Tuesday, is that, by having this clause but failing to refer alongside it to the Sewel convention that the UK Parliament will not normally use its powers to legislate in devolved matters without the agreement of the National Assembly—or indeed the Scottish Parliament—it appears to our colleagues there to undermine the devolution settlements.

It is for that reason, as we discussed in relation to Amendment 45 on Tuesday that the Welsh Government wish the Sewel convention to be restated alongside what is in this clause, if it really must remain in the Bill, although it is in fact otiose and it would probably be best for it to go altogether. I see the Chief Whip in his place; he always likes to know what we will return to. That is one point to which we shall return next week.

For the Opposition, however, there is a different problem with the clause, which is that the rest of the Bill does the exact opposite to what it says in it. Virtually all the rest of the Bill dilutes parliamentary sovereignty vis-à-vis the Executive: it takes powers from us, not to give them to Wales or Scotland but to give them to the Government.

Future historians will puzzle over why this clause is here. We are particularly grateful to the noble Lords for giving notice of their intention to oppose that Clause 38 stand part, because it gives us the opportunity to write that into Hansard, so that when future historians—I am a historian—look at why on earth this clause was there, they can say it was there to keep the ERG of the Tory party happy. That does not seem to us to be a very good reason to have it, but if it really must remain, without the reference to the devolution settlements it is in fact unhelpful, rather than neutral.

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

My Lords, I am obliged to noble Lords for their contributions to this part of the debate. I express some concern that the noble Lord, Lord Wallace, wishes to concertina hard ideologues of the right, English nationalists and Brexiteers into one uniform group. That is regrettable shorthand and, indeed, the very fact that his party has adopted that sort of attitude towards the issue of our leaving the European Union might go some way to explaining why it returned after the general election with a total of 11 Members in the House of Commons. There are many, many people in the United Kingdom who are not English nationalists but voted to leave the European Union. There are many people in the United Kingdom who are not hard ideologues of the right who voted to leave the European Union.

[Lord Wallace of Saltaire]

My Lords, I entirely accept that. I am merely talking about those who have written about this. I am talking, as my noble colleague on the Labour Front Bench suggested, about those who have been agitating for clauses such as this, who have been expounding—the Martin Howes of this world—and not, of course, the average voter, who has much a simpler collection of views on all this. We know that the vote came for many reasons, but for those who have written and spoken about the justification and the necessity for this, in overlapping groups, I think that the terms I used were justified. We are talking about a view of English exceptionalism, which perhaps even some Scots share—a view of English identity and our difference from the continent, which I do not share but which I was taught at university. I have learned a great deal about it and I dispute it.

[Lord Keen of Elie]

My Lords, even though the noble Lord may seek to narrow down the characterisation he advanced in his opening, I still do not accept it. It appears to me to go far too far in its assertion of who might be concerned to restate and recognise the sovereignty of our Parliament, and why. I will make two comments on his observations. He did not mention the duality principle, but he ought to bear it in mind because, of course, while the Executive may enter into obligations at the level of international law, they have no impact on domestic law unless and until they are brought into domestic law by this Parliament. So there is no question of parliamentary sovereignty being undermined in any sense by the ability of the Executive to enter into treaties, and to have and enjoy that treaty-making power. That is simply not correct.

On the noble Lord’s observations about the separation of powers and the position of the judiciary, I invite him to revisit, as am sure he has often done before, the work of Dicey on the constitution—I think the 1887 edition was the last one that Dicey himself edited—in which he makes very clear the position of the judiciary vis-à-vis the sovereignty of Parliament.

[Lord Wallace of Saltaire]

I have indeed read Dicey and I am conscious that his views on a number of issues were influenced by his growing opposition to home rule.

[Lord Keen of Elie]

It is well known that, latterly, Dicey developed views on home rule for Ireland that differed from what might be regarded as the mainstream at the time. Be that as it may, his works on the principles of the constitution stand the test of time and are worthy of being revisited by the noble Lord.

I shall deal shortly with the point advanced by the noble Baroness, Lady Hayter, about the scope of the present clause. The Sewel convention is not itself a matter of constitutional law; it is a political convention, as the Supreme Court made clear in the first Miller case. It is a political convention into which the courts would not intrude. Be that as it may, it has of course been restated in statutory form and therefore does not require repetition. Section 2 of the Scotland Act 2016 and Section 2 of the Wales Act 2017 restated it expressly in statutory form. So it is there on the statute book and does not invite repetition. What is not contained in any of the devolved legislation, for obvious reasons, is a restatement and recognition of the fundamental principle of our constitutional arrangement, namely that Parliament is sovereign, and there is therefore a desire to see that made clear.

The noble Lord, Lord Wallace, suggested that there was some deficiency in the drafting of the clause, but I resist that suggestion. It says, in terms, that the principle of our constitutional arrangement—namely, parliamentary sovereignty—is recognised. It is universally recognised, and that is an appropriate way to express the position of our constitution. In other words, nothing in the Bill derogates from the sovereignty of Parliament, and this clause makes that clear.

[Baroness Hayter of Kentish Town]

Does the noble and learned Lord therefore accept that if there was an addition to restate the convention, that would not detract in any way from what is in the clauses at the moment?

[Lord Keen of Elie]

It would not detract from the clause but it would be an unnecessary repetition. We do not normally put precisely the same provision into statutes two or three years apart. Here we have the provision with regard to the Sewel convention in Section 2 of the Scotland Act 2016, and again in Section 2 of the Wales Act 2017. It is there. It is on the statute book; it exists. That is why there is no need for repetition.

As I say, leaving the European Union is a matter of some significance in the context of our constitutional arrangements, in particular, the repeal of the ECA. It is therefore appropriate in this context that there is an explicit recognition of the principle of parliamentary sovereignty. Therefore, as the Bill implements the withdrawal agreement so that we can leave the legal order that is the European Union, it is appropriate, when disentangling ourselves from those international obligations, that we ensure that there is no concern about the principle of parliamentary sovereignty. It is for Parliament, acting in its sovereign capacity, to give effect to the agreement in domestic law—that is the duality principle, and nothing in the Bill derogates from that principle as recognised by this clause. In these circumstances, I submit that it is entirely appropriate that this clause should stand part of the Bill, and I invite the noble Lord not to oppose it doing so.

[Lord Wallace of Saltaire]

My Lords, in that case, I find the phrase “unnecessary repetition” entirely appropriate to this clause as a description of what it is for. I referred to the duality principle; I remind the noble and learned Lord that the United States also has that principle, and that the view of the exceptional position of the American constitution and its relationship with international law means that, on occasion, the Senate turns down treaties that the United States has negotiated, sometimes to the extreme discomfort of the international legal order.

[Lord Keen of Elie]

I think we are aware that it did not join the League of Nations.

[Lord Wallace of Saltaire]

Not just the League of Nations—there was also withdrawal from the joint agreement with Iran, although that was an executive act.

I was saying that our Parliament, which is sovereign, is constrained by acceptance of the legal order. On the delicate relationship between Parliament and government over the negotiation of treaties, particularly trade treaties, we need to bear that in mind, because, as a Parliament, we have never rejected a treaty that a Government have negotiated. That is one reason why many of us are still pressing for that. I wish merely to mark that these issues need to be examined in more detail, that the Government have committed themselves to some sort of commission on the constitution, the judiciary and democracy, and that as we leave the European Union, it is entirely appropriate—indeed, necessary—that we re-examine some of these questions about which, as the noble and learned Lord and I have shown in our discussions, there is some contestation.

--- Later in debate ---

[Lord McNicol of West Kilbride]

My Lords, I responded to an amendment in the name of the noble Lord, Lord Greaves, on day 1 of Committee, so it seems we have come full circle. I offer a brief response to these further amendments regarding the independent monitoring authority. I understand that these are probing amendments, and I am keen to hear the Minister’s response, so I will not detain the Committee after three consecutive days of debate on this Bill, which I hope will not be a trend in future when debating Bills off the back of Brexit.

I am particularly interested in Amendments 49 and 50, which would prevent the Secretary of State from appointing a person to the IMA against the wishes of the relevant body. This suggestion strikes me as entirely sensible. Given previous ministerial assurances on the issues of devolution, I would be very interested to hear from the Minister in what circumstances the Government would seek to force through an appointment that had been opposed by a devolved Minister. If that were to happen, the current sub-paragraph (7) requires the Secretary of State to make a statement outlining the reasons for proceeding with that appointment. Can the Minister confirm what form this statement would take, and what opportunities, if any, the relevant devolved legislatures would have to hold the Secretary of State to account?

[Lord Keen of Elie]

I am obliged to the noble Lords, Lord Greaves and Lord McNicol of West Kilbride, for their contributions.

As was the case during Tuesday’s debate on Clause 15, we have noticed the importance of the IMA’s role and functions interacting properly with the devolved settlements. I seek to reassure the noble Lord, Lord Greaves, and the House, that the IMA has been designed in a way that takes into account the individual interests and circumstances of Scotland, Wales, Northern Ireland, England and indeed Gibraltar.

In addressing the amendments, I begin by showing the Committee that the Government’s approach to establishing the IMA, as set out in Clause 15 and Schedule 2, was reached following detailed and extensive engagement with the devolved Administrations. As a result of this consultation, we have ensured on the face of the Bill that the IMA’s board will contain members with knowledge of relevant matters in relation to citizens right across the United Kingdom. Those relevant matters include not only matters reserved for the United Kingdom Government, but also matters that are devolved to the Scottish, Welsh and Northern Irish Administrations. Therefore, we have provided a full and robust role for Ministers of the devolved Administrations in the appointment of candidates to board positions. Of course, parts of the citizens’ rights agreements that the IMA will monitor, such as provisions covering healthcare, welfare and education, are already devolved to Scotland, Wales and Northern Ireland, which has been taken into account. That is why there is a requirement for expertise in these areas.

However, I reassure the noble Lord, Lord Greaves, that the IMA will also possess the same expertise specifically in relation to England. He refers to Amendment 48 as seeking to achieve expertise in that area, but I draw his attention to paragraph 4(1) of Schedule 2, which states that

“the Secretary of State and the non-executive members must have regard to the desirability of the IMA’s”

board possessing relevant expertise in relation to citizens’ rights across the United Kingdom. It should embrace both reserved areas which are pan-UK and those devolved areas specific to the particular devolved Administrations. We can ensure by default that regard is had to the desirability of the IMA possessing expertise in relation to England. It is for that reason that Amendments 48 and 51 are unnecessary and I shall in due course invite the noble Lord not to press them.