European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Goldsmith]

My Lords, this amendment deals with a point that we raised and discussed in Committee. It may be that this group will not take too long, although that will depend upon what the Minister has to say. The important point about this is that the Bill as drafted would mean that at the moment Royal Assent was given, certain things would happen, including that the jurisdiction of the CJEU would come to an end. We raised the point that, given that it appeared likely that during an implementation period the Court of Justice of the European Union would continue, by agreement, to have certain jurisdiction, it would be important not to see the CJEU’s jurisdiction fall off a cliff edge, as it were. It may be that the noble and learned Lord the Minister will be able to reassure us that they will deal with this so as to ensure that if the CJEU continues to have jurisdiction in certain circumstances—which, as I say, I believe is a likely outcome of the continuation of the discussions—the Bill will not have taken away the ability to do that.

Amendment 109 would not allow Clause 6—which, among other things, brings the CJEU’s jurisdiction to an end—to come into effect until,

“the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.

The amendment focuses on transitional arrangements that are in fact agreed, not hypothetical arrangements. It would achieve no mischief because transitional arrangements would in fact be agreed and we would be saying simply that the jurisdiction of the CJEU should not come to an end until the end of that period.

The Minister may put forward some alternative way of achieving the same effect. I will listen very carefully, as will other noble Lords, to what he has to say about that. For the time being, I beg to move.

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

My Lords, in light of the observations made by the noble and learned Lord in moving this amendment, I will make one observation at this stage in response to his invitation to me.

Part Four of the withdrawal agreement so far agreed between the United Kingdom and the EU sets out:

“During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union”.


That would mean that during the implementation period—assuming that that is actually agreed—the CJEU will continue to fulfil the role it currently does with regard to the UK’s legal structure. This effect will be provided for under the withdrawal agreement and implementation Bill. I do not know whether that assists the noble and learned Lord but that is the position as set out.

I add only that given the terms of the noble and learned Lord’s amendment—and I appreciate that it has been deliberately framed in this way:

“A Minister of the Crown may not appoint a day on which section 6 is to come in force unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union”,


if that amendment was passed, it would throw into doubt what would happen if there were no transitional arrangements. That is not an outcome that we seek but it is a distinct possibility and would mean either that Section 6 did not come into force at all or that potentially we would be thrown back into the billowing mists of uncertain inference. So I have that objection but I thought it might assist noble Lords if I made clear our position with regard to the implementation period. I hope that that responds to the noble and learned Lord’s observation.

[Lord Goldsmith]

My Lords, I cannot agree with the point raised by the Minister about the wording of the amendment. The amendment says that a day may not be appointed,

“unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.

If in fact no arrangements have been agreed between the United Kingdom and the European Union, it would seem that effect could be given to the amendment.

Be that as it may, the important point is that, as I understand it, the Minister has said two things. He has said, first, that if an implementation agreement is agreed, it will include continuing jurisdiction of some sort for the Court of Justice of the European Union and, secondly, that the Government will make sure that that jurisdiction is provided under the terms of legislation to be brought forward; I think the implementation Bill is what the Minister has in mind. If that is right and the Government are telling us that they intend that legislation will incorporate a continuing jurisdiction if that is agreed, that would deal with the mischief that this amendment was designed to deal with.

If that is the position—it would be very helpful if the noble and learned Lord could confirm whether it is—I would then be able to beg leave to withdraw the amendment. I am watching his body language but I have been fooled by that before, so I would be grateful if he clarified whether what I have said is right.

[Lord Keen of Elie]

It is of course the position that there is no certainty that there will be an implementation agreement. In that event, I would seek to differ with the noble and learned Lord about the interpretation of his amendment but that is a matter of little moment, I agree. However, in the event of there being an implementation agreement that follows the terms of the withdrawal agreement in outline, which noble Lords have seen, then during the transition period the Union law applicable pursuant to paragraph 1 will produce the same effect in the United Kingdom as in the remainder of the EU. That would extend to the jurisdiction of the CJEU in respect of the matter of the interpretation and effect of such law. The noble and learned Lord is quite right that it would be the intention of Her Majesty’s Government, in those circumstances, to ensure that such a provision was expressed in the withdrawal agreement Bill.

[Lord Goldsmith]

My Lords, in those circumstances I beg leave to withdraw the amendment.

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[Baroness Hayter of Kentish Town]

My Lords, the House has heard the pleas of the heart if not of the head. I think I have said before that, although I was born in Germany, I sadly do not qualify for a German passport or else I would be doing the same as many others. So many people are doing it because they fear and regret losing their EU citizenship. As the noble Lord, Lord Kerr, quite rightly said, in the treaties EU citizenship is an add-on. Only people who are citizens of a member state have EU citizenship, with all the rights, protections and consular protections that brings. They have to be a citizen of a member state. Sadly, that change will come and we will not be EU citizens.

I would like to leave a thought with the Minister. We have not treated the whole of this aspect sufficiently seriously. We have not reached out to EU nationals living here and to people who are losing their rights as EU citizens. We have still not told EU citizens living here—unless I missed it—whether they will be able to continue to vote in our local government elections. We know they will not be allowed to vote in the European Parliament elections—that is fairly obvious—but there are other changes that the Government have been very lax and slow in spelling out.

The plea behind some of the feelings that we are having is to listen to the current EU citizens. If there is one plea that I would leave with our negotiators, it is that we need a withdrawal deal that puts citizens at its heart, not as an add-on, and that we should do everything that can be done to keep the links that we already have with agencies, education and so on. That would help to make a withdrawal deal that would enable British citizens, even if they will not have that lovely treasured purple passport, still feel as if they are continentals—full associates, if you like—with the rest of the EU.

[Lord Keen of Elie]

My Lords, this is of course an important issue that has already been covered in depth, both in this Chamber and in the other place. I welcome the opportunity to discuss it further with the noble Lord, Lord Wigley, when we exchange views on the interpretation of the Vienna Convention on the Interpretation of Treaties, particularly Article 70 thereof. I acknowledge fully his interest in this area, the depth with which he has examined it and the importance that he underlines with regard to this matter.

Nevertheless the position remains, as summarised eloquently by the noble Lord, Lord Kerr of Kinlochard, that there is no provision in EU law for the concept of associate EU citizenship. It is clear that EU citizenship is tied to citizenship of a member state. The European Commission itself has referred to the additional rights and responsibilities attributed to the nationals of EU member states by virtue of EU citizenship, which they automatically attain under the provisions of the EU treaties. I emphasise the EU treaties because to take such a matter forward it would be necessary to contemplate the amendment of the EU treaties in a quite radical way, in order to attempt to confer on citizens of non-EU members the status of EU citizenship or something connected to it. However, we are willing to listen. Noble Lords may recollect that the European Parliament mentioned the idea of some associate citizenship; it has never elaborated upon that but if it wishes to, we are listening, and we would listen to that. I wish to make that clear.

The position of the Republic of Ireland emerges as the consequence of bilateral treaties that predate our entry into what was then the EEC and Ireland’s entry into the same, and that is not directly affected by our exit from what is now the EU. My understanding is that those arrangements continue in force.

With regard to the wider issue raised by the noble Baroness, Lady Hayter—the matter of voting rights, for example—during the course of the earlier negotiations we attempted to negotiate with regard to the exchange of voting rights, but at that stage the Commission declined to do so. That is something that we would wish to carry forward but the Commission was not prepared to engage in that discussion at that stage of the negotiation. Again, we remain open on these matters.

The citizens’ rights agreement reached in December, which is now set out in the draft withdrawal agreement, provides certainty for UK nationals in the EU regarding their rights following our exit. The agreement with the EU protects the rights of EU citizens and their family members living in the UK on exit day and indeed vice versa. To that extent, it will give citizens certainty about a wide range of rights including residence rights, healthcare rights and pension and other benefit rights. That will mean that UK nationals who are legally resident in the EU by the end of the implementation period will continue to benefit from most of the rights that stem from their EU citizenship today. As I say, associate EU citizenship does not make up part of the citizens’ rights agreement, and indeed by attempting to make it a negotiating objective we would be setting ourselves what is, frankly, an impossible target. The consequence would be that, should the amendment pass and the Government fail to adopt such an impossible negotiating position, our entire post-exit statute book would be put at severe risk. There would appear to be no sensible point in attempting to do that.

I stress that with regard to this matter we are in listening mode. Reference was made to the suggestion of further litigation in this area. A case is going on in Holland at present. It was referred by the Dutch Government to the Amsterdam Court of Appeal, which has heard the appeal and is due to deliver its judgment later in June. We do not believe that is going to affect the matter at all but we await the judgment of that court. At present, though, we must proceed with the ultimate goal: to deal with Brexit in the easiest manner possible so far as citizenship is concerned.

[Lord Adonis]

My Lords, could the Minister tell us what the case at the Amsterdam Court of Appeal is?

[Lord Keen of Elie]

My Lords, it was an application about the rights of certain UK citizens resident in Holland having rights post Brexit in Holland. The objective of the case was clearly to secure a reference to the CJEU for the interpretation of certain treaty matters. When that proceeded, it is my understanding that the Dutch Government then intervened in the proceedings and they were the subject of a hearing before the Court of Appeal in Amsterdam. That matter is not yet advised, so that is where it stands. I am afraid I cannot give further details of the case but I understand that it was partly funded by lawyers in the UK. I hope that assists the noble Lord.

As I say, at present we, the EU and the Commission are quite clear on what the concept of EU citizenship means, that the source is the EU treaties, and that there is no provision at present for associate citizenship. If during the course of negotiation the Commission or other bodies in the EU come forward with such proposals, we will of course listen to them. At this stage, though, I invite the noble Lord to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful to everyone who has taken part in this debate: the noble Viscount, Lord Hailsham, the noble Lords, Lord Kerr of Kinlochard, Lord Dykes and Lord Green, the noble Baronesses, Lady Hayter and Lady Ludford, and the noble and learned Baroness, Lady Butler-Sloss. It has been a short but worthwhile debate. Some of those participating in it have seen weaknesses in the amendment, and I accept that there is room for criticism in that direction and that it is a challenge with regard to the status quo within which we are operating.

None the less, I feel that some benefit has come out of the debate, in that the Minister has indicated that the Government would be in listening mode, both in terms of the negotiations that are going on and in terms of what may or may not come forward from the European Parliament itself on this matter, bearing in mind that Mr Verhofstadt has indicated fairly strong feelings in that direction. If it were possible for some form of associate citizenship to develop out of this—if indeed we leave the EU, which I would regret but is likely to happen—that could retain our links for the period while we are outside the EU directly, I am sure that would be of interest to a large number of people, particularly to young people, as has been mentioned in this debate, because they identify with the European dream. The European dimension is part of their identity and they would like to have some access to it in a more formal way. On the basis of the comments made by the Minister, which I welcome as far as he was able to go, I beg leave to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

117: Schedule 8, page 64, line 29, at end insert—
“(7) Paragraph 4 of Schedule 1 does not apply in relation to any proceedings begun within the period of two years beginning with exit day so far as the proceedings relate to anything which occurred before exit day.”

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[Lord Keen of Elie]

My Lords, I rise to move the Government’s Amendment 117. The Bill’s approach to certain EU rights of challenge and associated remedies has already been scrutinised closely. We have debated at length the substantive provisions in the Bill covering this area and this House has made clear its views. I do not intend to go over old ground again in this speech. The amendment deals with the approach to transitional cases in one important area, where Francovich damages are being sought. I will say a little about the particular substantive provisions that this relates to.

Francovich damages are a specific form of remedy that exists in EU law. They are available in certain strictly limited circumstances where member states have breached EU law, for example where a member state has failed to properly transpose a directive. The Government remain firmly of the view that, after we leave the EU, Francovich damages will no longer be relevant when we cease to be bound to follow obligations that apply to member states. This is for the simple reason that the majority of Francovich cases in the UK have been brought on the grounds of non-implementation or insufficient implementation of a directive. The UK will no longer be under an obligation to implement directives after exit and the directives will not form part of our domestic law as retained EU law, so the ability to claim Francovich damages would not be possible for a post-exit cause of action. Paragraph 4 of Schedule 1 therefore removes the right to Francovich damages after exit day. The Government consider this outcome to be a natural consequence of the decision to leave the EU, while ensuring Parliament is sovereign.

The impact of these provisions on transitional cases is one area that the House urged us to think again on when we debated the matter in Committee. I concede that the noble Lords, Lord Davies of Stamford and Lord Carlile, made powerful arguments, in particular on the need to look again at cases where an individual’s course of action accrued before we left the EU. The amendment responds directly to that concern.

We remain of the view that it would not be reasonable for there to be a long tail of cases based on outdated elements of EU law continuing to process through our courts, potentially for many years after we leave the EU. That would not be conducive to the legal certainty this Bill aims for. The Bill will therefore set what the Government believe to be a clear and sensible cut-off point. The amendment we have brought forward will therefore delay the prohibition in the Bill on seeking Francovich damages in domestic law for two years after exit day. This will provide individuals with a fair and sensible opportunity to seek damages for pre-exit breaches of EU law. It also ensures that we continue to have a clear and certain cut-off point after which such challenges would end. I hope that the House supports the proposals that we have put forward, which I think provide important reassurance to individuals and businesses. I therefore beg to move.

[Lord Beith]

My Lords, I wonder whether the noble and learned Lord could help the House, or those of us who were not following quickly enough, as to how Amendment 117 relates to Amendment 116, which, as I understand it, the Government did not move, and what the effect would be of having Amendment 117 without Amendment 116. Would that affect the Francovich damages time limitation?

[Lord Keen of Elie]

My Lords, the intention with respect to Amendment 117 is that there should be a two-year period after exit, during which it will be possible for a claim to be made in respect of a right of action that accrued up to the point of Brexit. I hope that that clarifies the point.

[Lord Beith]

What was not clear to me was why the Government did not move the preceding amendment.

[Lord Keen of Elie]

That is probably attributable to a note that I have here saying, “Don’t move Amendment 116”.

[Lord Goldsmith]

I will try to help the noble and learned Lord. It might be because it is pre-empted by Amendment 19 on general principles of EU law, which the House passed at an earlier stage.

[Lord Keen of Elie]

It was moved by the noble Lord, Lord Pannick. Because it was passed, Amendment 116 does not arise.

Amendment 117 agreed.