Brexit: Withdrawal Agreement and Political Declaration

Debate between Lord Keen of Elie and Baroness Ludford

Monday 14th January 2019 Lords Chamber

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

My Lords, I am pleased to close this debate on behalf of the Government. I thank noble Lords on all sides of the House for their contributions to this debate. It is a mark of the role of this House that even at this hour, the House is in its present form and so full as we conclude such an important debate on such a fundamentally important issue.

Trust and compromise. If we do not trust those with whom we engage, there really can never be room for compromise. If we have no means to compromise, we will find it impossible to achieve consensus. Trust and compromise. I am not a supporter of the idea of referenda. Like the noble Lord, Lord Stephen, I experienced at first hand the referendum on Scottish independence. It was attended by division, exaggeration and overstatement, and was immediately followed by demands for a second referendum that have persisted ever since. But this Parliament decided that the question of whether or not we remain or leave the EU should be put to a referendum. No one forced parliamentarians to do that. They passed an Act for the referendum by an overwhelming majority. They did not concern themselves overly at the time with the precise terms in which they were going to put that to the people—they were simply determined that it would go to the people.

Then they went to the people in a general election, and both principal parties put it forefront in their manifestos that they would respect the result of the referendum. Thereafter, this Parliament passed an Act to authorise the Executive to serve the Article 50 notice, which under international law would determine our membership of the European Union. Then, this Parliament passed the European Union (Withdrawal) Act, which defined the exit date for us to leave the European Union as 29 March 2019. So it was this Parliament which determined, both at the level of international law and in domestic law, that our exit from the European Union would take place on that date.

There followed two years of negotiations. In some places I hear those negotiations belittled. They were carried out by officials working to their instructions and performing to the best of their ability. Perhaps some would be prepared to acknowledge that, whatever the outcome of their actual negotiation. Without the withdrawal agreement I simply remind noble Lords that we do, under the law that this Parliament made and implemented, leave the European Union on 29 March of this year. That should be at the forefront of everyone’s mind.

We have heard reference to alternatives and mention of Labour’s six points. I was going to refer again to the lucid explanation of those points given by the honourable Member for Brent North, Mr Barry Gardiner, who is still the Front-Bench spokesman for Labour on the matter of trade—but I do not think I really need to repeat it. The noble Lord, Lord Liddle, gave a very adequate summary of Labour’s position on this. I would merely mention that the noble Baroness, Lady Hayter of Kentish Town, alluded to a customs union which, as described by Labour, would be directly contrary to Article 1 of the treaty of Rome and would effectively confer upon the United Kingdom, were the EU ever to accept it, a veto over the EU entering into free trade agreements with third-party countries. It is admirable in its breadth but hopeless in its intent.

Of course, the Liberal Democrats did not go into the general election with a mandate to respect the outcome of the referendum and their position, as I understand it, is that they are determined to keep the United Kingdom in the European Union by any legitimate means. I see them acknowledge that and I understand it.

[Baroness Ludford]

Legitimate and democratic means.

[Lord Keen of Elie]

Legitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.

We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.

A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.

Brexit: Attorney-General’s Advice

Debate between Lord Keen of Elie and Baroness Ludford

Thursday 29th November 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, it is not for me to implore Members of this House not to worry in either the short or the long term, and it would be equally inappropriate for me to anticipate a Statement that has yet to be made by my right honourable and learned friend the Attorney-General.

[Baroness Ludford (LD)]

My Lords, can the Minister tell us whether the legal advice will take account of the interesting additional sentence in Monday’s Statement that opened up the prospect of there being a trade relationship but, if that were later altered by a future Parliament, the Irish backstop not coming back? What would be the legal implications of that for the European Union’s understanding that we will respect the Good Friday agreement and not bring back a hard border in Ireland—that is, we could chop and change whatever happens initially in the permanent relationship?

[Lord Keen of Elie]

I am not going to anticipate a Statement that has not yet been made. With regard to the interpretation and application of the withdrawal agreement, this is not the time or the place to indulge in a detailed analysis of its effect. However, the withdrawal agreement is in the public domain, and it is open to anyone and all to take appropriate legal advice if they consider that that is required with regard to the interpretation of that agreement.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

Monday 18th June 2018 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I hope the Government will keep an open mind in the future about the charter in the terms in which the Motion of the noble Lord, Lord Pannick, was framed—that is, as a guide to interpretation of retained EU law. While the noble and learned Lord, Lord Keen of Elie, said that most of the charter rights are found in other sources of law, not all of them are. This may prove to be an issue in the Brexit negotiations, which is why I hope that the Government might have cause and justification to revisit it.

I suggest that in the context of security co-operation and data transfers for the tech industry, this may be a factor in the extent and scope of our co-operation with the European Union in the future. I therefore make a plea that the Government do not totally close their mind to the EU Charter of Fundamental Rights as a guide to interpretation because I think that could be well received by those whom we have to persuade on the scope of co-operation.

[Lord Keen of Elie]

My Lords, I am grateful to all those who have spoken in this debate, in particular the noble Lords, Lord Pannick and Lord Beith, for their observations about engagement with the Government over these matters. The Government have listened and the other place has agreed to significant amendments in respect of certain challenges based on general principles of EU law. Given that, I hope that the House will endorse the decision today.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

It is not a question of difficulty; it is a question of how we have decided to approach dealing with this in a legislative manner. The intention is that the present Bill will legislate for legal certainty whether there is or is not a withdrawal agreement. In the event of a withdrawal agreement, we will legislate to ensure that in the withdrawal agreement and implementation Bill the terms of the present Bill will be brought into line with the terms of the withdrawal agreement in order that we can discharge our international legal obligations. We have consistently pointed out that that is the approach being taken to legislation in this context. It is really quite inconceivable to suppose that the Government are going to enter into a withdrawal agreement and then not implement that international legal obligation in our domestic law. That is the intention. It is simply a question of the order in which these things are being done, and it has always been maintained, and will be maintained, that it is not for this Bill to deal with the eventuality or the prospect of the implementation period.

[Baroness Ludford (LD)]

Does the Minister not appreciate the absurdity some of us feel? As the noble Lord, Lord Hannay, pointed out, we are being marched to the top of a hill that the Government have already abandoned. We are being asked to legislate in terms that are contrary to government policy and strategy in the Brexit negotiations, which leaves one feeling in a somewhat surreal position.

[Lord Keen of Elie]

I sympathise with the idea of being left in a somewhat surreal position. As I said at the outset of my remarks, nothing is agreed until everything is agreed, so while we have the anticipation and desire to secure an implementation period, nothing is agreed until everything is agreed.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

Wednesday 21st March 2018 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Lord for his assistance, which is always welcome. I do not agree with the point made by the noble and learned Lord, Lord Goldsmith, regarding the breadth of the provision. This is a standard type of power contained in many Acts of Parliament to deal with consequential issues, such as those alluded to by the noble Lord, Lord Bassam. A very similar power can be found in the Scotland Act 1998, in the Northern Ireland Act 1998, in the Government of Wales Act 1998, and in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO. All these statutory provisions have a similar consequential power for the same purpose, so this is not unique, exceptional or unusual.

However, I understand concerns being expressed about the scope of the power and the way it will be used. I notice the reference by the noble Lord, Lord Lisvane, to the use of the term “appropriate”, which some, of course, often consider to be inappropriate in a statutory context. I hear what is said about making clear that this is a consequential power that will be needed to repeal provisions.

The noble Lord, Lord Bassam, asked for examples. If we look at the various statutory provisions for accession of other countries to the EU—the Croatian accession is the most recent—which amend the ECA, it is necessary to address that sort of primary legislation. If we look at the provisions of the European Union (Approvals) Act 2017—

[Baroness Ludford (LD)]

I thank the Minister for giving way. He cited some other examples. I admit that I am not familiar with devolution statutes and the consequential powers in them, but we have to take account of the context in which this legislation is being made and the considerable worries about the potential use to which they could be put, which is surely more than the Croatian accession. The Government cannot ignore the worries that these powers—in the context of the Brexit negotiations, future relationships, trade deals and whatever—could be used in a way which could significantly affect existing rights and remedies.

[Lord Keen of Elie]

With respect, it appears to me that some of the fears being expressed are not about the use of these powers, but about their misuse. As the noble Baroness, Lady Ludford, observed, we have to see this provision in context. It is to be applied to the consequences of the Bill becoming law.

The noble Lord, Lord Bassam, asked for further examples. There are many examples in primary legislation of where consequential amendment will be required. I will not elaborate on them at this stage. For example, there are provisions in all the accession Acts that would have to be regarded as necessary to clear up in the context of the statute book. There are provisions in such things as the Legislative and Regulatory Reform Act 2006, which would again have to be addressed in this context as a consequence of our removal when the Bill becomes law.

What will be required is a meaningful indication of the type of change that is needed to keep the statute book in reasonable order after our departure from the EU. In my respectful submission, where there may be concern about the misuse of this consequential power we are of course alive to concerns that are expressed. It may be that it turns largely not on the way Clause 17(1) is presently framed, but on the use of a term such as “appropriate”. We will give further consideration to the use of that language and whether that is the way this consequential—I stress “consequential”—power should be employed in this context.

I hope that gives noble Lords some degree of reassurance about the intention here. I suggest that the removal entirely of the consequential power contained in Clause 17 would have a materially adverse effect on the way the Bill can be properly implemented to bring the statute book into proper order following our exit from the EU. I hope at this stage that the noble Lord will see fit to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

Monday 19th March 2018 Lords Chamber

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

My Lords, I thank the noble Lord, Lord Haskel, for tabling this amendment. I believe the intention behind it is to ensure that United Kingdom law will continue to function effectively after our departure from the European Union. This is, of course, the aim of the Bill, and so I welcome his engagement on its content. However, despite these intentions, the Government cannot accept the amendment.

The Bill will take a snapshot of European Union law—including the rights, freedoms, protections and standards it brings—so far as it applies within the United Kingdom immediately before exit day, and seek to retain it in UK law, so far as is practical. It will then be our priority to ensure it will be able to operate consistently and without deficiency within our domestic law through the use of powers given in the Bill. This includes ensuring that there is suitable provision for the transfer of existing functions and roles carried out by the EU or its institutions while we are a member. It is of course right that the Bill is able to do this.

The United Kingdom has a long-standing tradition, one that predates 1972, of ensuring that our rights and standards are protected domestically, and of fulfilling our international obligations with regard to these matters. The decision to leave the European Union does not change this. Any regulation to correct a deficiency in retained EU law, within which such rights, freedoms, standards and protections will sit, will of course be subject to the overview of this Parliament: it will be subject to the established procedures of parliamentary scrutiny and, in addition, to the work of the sifting committee that the Leader has indicated will be constructed in this House.

The noble Lord, Lord Haskel, said that standards would be subject to Ministers. But standards, I suggest, will be subject to parliamentary scrutiny. I say the same in response to the noble Baroness, Lady Ludford. We will retain the law and it will not be empty of meaning because again, in so far as we implement it in domestic law, it will be the subject of parliamentary scrutiny. The noble Baroness, Lady Jones, suggested that retained EU law would be worthless if there were no body to oversee it, but that body will be Parliament. No body is better equipped for that task than Parliament.

On policy co-ordination, referred to by the noble Lord, Lord Liddell, of course, that is bound to be a matter of negotiation and not one for this particular Bill. We want to negotiate questions of the extent and depth to which we co-operate with members of the EU after we leave. As regards standards themselves, is it suggested that because we are in Europe—as the noble Lord, Lord Cormack, observed, we still are and still will be—but not in the European Union, somehow our standards are bound to fall? Is it supposed that Switzerland or indeed Norway do not maintain rigorous standards in regard to consumers, the environment and so on?

[Baroness Ludford]

Norway is in the single market. That is why it has to uphold the same standards, and Switzerland is de facto in the single market.

[Lord Keen of Elie]

Switzerland is not de facto in the single market. Switzerland has a multiplicity of agreements with the EU that have been negotiated on a bilateral basis, which is the form of negotiation that we intend to carry out in due course. Membership of the EU is not, as I say, the touchstone of rigorous standards either in Europe or beyond.

With regard to the points raised by the noble and learned Lord, Lord Goldsmith—

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

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

[Baroness McIntosh of Pickering]

My noble and learned friend is talking in the context of this being an international treaty that has to be transposed into UK law, but surely the amendment addresses the issue of the supremacy of European Union law, which citizens of the EU currently rely on when they live in this country. I thought that the purpose of the amendment was to make sure that those rights continued to exist and would be clarified. That is all that we asking in the Committee today.

[Baroness Ludford]

My Lords—

[Lord Keen of Elie]

With great respect to the noble Baroness, I think that I must respond to my noble friend Lady McIntosh.

Again, that argument rather misses the point, because what we have at the moment is a belief on the basis of the joint report that rights of EU citizens in the UK may be referred to the Court of Justice of the European Union after Brexit, but that is not finalised; it is not yet contained in an international treaty agreement.

[Baroness Ludford]

We have always understood that we cannot unilaterally guarantee in the context of what is now happening an agreement of two parties. What was said from the very beginning, immediately after the referendum, was, “Give a unilateral guarantee and then we can with almost 100% certainty expect full reciprocity”. That was always what was suggested.

[Baroness Ludford]

Yes, I would say to the sedentary noble Lord.

[Lord Keen of Elie]

With respect to the noble Baroness—who I think invited me to drop all the mire; I am not sure what I am supposed to do about that—the expectation of reciprocity is something that we hope to achieve during the negotiation, and that is ongoing.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I, too, am grateful to the noble Lord, Lord Beecham, for making that point. I would add only that I spoke as a Minister of this Government in expressing that view, because I spoke from the Dispatch Box when I made it clear. I can refer the noble and learned Lord, Lord Goldsmith, to Hansard in regard to that point. Of course, the origins of the remark may not have had quite the impact that it could otherwise have had if coming from another source—I do not seek to elaborate on that point.

Sometimes it comes ill to counsel to listen rather than to speak, but this is an occasion when it is entirely appropriate for me and for the Government to listen to what has been said. I am extremely grateful for the contributions of all noble Lords and noble and learned Lords with regard to the formulation of Clause 6(2). I refer to the formulation of the clause because I believe we have a common desire to ensure that we give appropriate, effective and clear guidance, in so far as it is required, to the judiciary regarding what is a relatively complex issue. Of course the noble and learned Lord, Lord Hope, pointed out that in the normal way one might delete Clause 6(2) and allow the courts to deal with this as they deal with other matters of comparative law, but he went on to point out—quite correctly, I submit—that here we are dealing with a very particular situation where guidance may be needed. I am conscious of the way in which the various amendments have evolved.

The noble and learned Lord, Lord Neuberger, also referred to Clause 6(4) and the issue of whether and when the Supreme Court might decide whether to adhere to precedents in this context. I bow to the far greater experience of the noble and learned Lords, Lord Neuberger and Lord Hope, who sat in the UK Supreme Court. My limited experience is that, where I attempted to persuade them to adhere or not to adhere to a particular precedent, they had no difficulty in making their own minds up.

Be that as it may, I recognise the force of the points that have been made. They have come from beyond this House as well because, as noble Lords will be aware, the Constitution Committee also made some recommendations about this. Indeed, its early recommendation in March 2017 was,

“the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts ‘may have regard to’ the case law of the Court of Justice (and we stress that it should be optional)”.

Indeed, we were having regard to that as we looked at Clause 6(2).

A point was made about the distinction between “may” and “must” in the amendment of the noble Lord, Lord Pannick. It occurs to me that, where he uses “must”, he goes on in his amendment at (2C) to qualify the context in which that word is used, and there may not be a vast gulf between “may” and “must” in the context of the two amendments that have been tabled. Of course, that which was recommended by the Law Society of Scotland has the merit of some simplicity and embraces the same point.

At this stage I would add only that the Bingham Centre looked at the current recommendations of the Constitution Committee that lie behind the amendment in the name of the noble Lord, Lord Pannick, and raised concerns about a number of aspects of the formulation put forward by the committee. However, I make it clear that we greatly appreciate the contributions that have been made to this part of the Committee’s debate. We will go away and consider the various formulations, and I believe it would be sensible for the Government to engage with various interested parties once we have come to a view about how we can properly express what we all understand is necessary policy guidance in the context of this exceptional step. Against that background, I invite noble Lords to consider not pressing their amendments at this stage.

[Baroness Ludford]

I know I will not be popular by holding things up, but the Minister was specifically asked if he could explain the reference to,

“another EU entity or the EU”,

in Clause 6(2). I do not know whether he feels he could do that. Does it have any reference to the European Commission? The Prime Minister said we would have a binding commitment to follow EU state aid and competition law, and I wondered if it had any relevance in that context.

[Lord Keen of Elie]

I am not going to elaborate at this stage because, as I say, the Government are going to go away and consider the proposals for an amendment to Clause 6(2).

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

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

[Lord Keen of Elie]

I cannot say that agreements are being reached at this time because we are only setting out on the process of negotiation with regard to the future partnership; I cannot take that any further at this stage. However, our position is that family law co-operation is critically important, and it is no different from our general position with regard to civil co-operation.

I would acknowledge that the development of Brussels IIa is an improvement on the Hague conventions, and indeed I believe that some would acknowledge that it is an improvement on the terms of the Lugano convention in this regard as well. The terms have been refined and developed, and it may be that there will be a further negotiation and conclusion over Brussels IIa—what might be termed as Brussels IIb, I suppose—which may well occur after Brexit. Nevertheless, in order to ensure that we have reasonable alignment and therefore the basis for reciprocity, we will want to take into consideration such developments in the law.

Let us be clear: generally speaking, these developments take place for all the best reasons. They are developments that reflect improvements, so why would we turn our face away from improvements in the law on the reciprocal enforcement of family law matters related to maintenance, divorce and child abduction? We have no cause or reason to do so and of course we are going to embrace these matters.

I appreciate that the amendments in this group are probing in nature, but I shall try to address some of the specific details. The report called for in the first amendment tabled by the noble Baroness would require the Government to publish details of how rights in EU family law operate in domestic law as well as key details of the negotiations within six months of this Bill receiving Royal Assent. With great respect, that is an arbitrary deadline which makes no reference to the position of the negotiations at that stage or the other documents that the Government will be publishing on the subject. These documents include not only any final agreement reached in the negotiations regarding continuing judicial co-operation on family law, but also the explanatory material that Ministers will publish when they exercise their key Bill powers to amend retained EU law. That will include retained EU family law. So, as I am sure the noble Baroness is aware, any agreement between the UK and the EU will be detailed clearly within the withdrawal agreement and domestically legislated for in the upcoming withdrawal agreement and implementation period Bill, which Parliament will have a full opportunity to scrutinise. However, I have to say that it does not arise in the context of this Bill.

The next amendment concerns the jurisdiction of the CJEU. We will discuss that in more detail when we come to debate Clause 6, so I will not take up a great deal of time although I want to make a couple of points. First, it is not necessary for the UK to be subject, unilaterally, to CJEU jurisdiction to secure a reciprocal agreement in this field any more than it is a requirement of the signatories to the Lugano convention to secure agreement with Brussels regarding family law matters. There are a number of existing precedents: not just Lugano, but the Hague convention as well. As I have indicated, the jurisdiction of the CJEU is sometimes either exaggerated or misunderstood in this context. In the EU, it is of course the final arbiter of the construction and application of EU instruments, but that does not mean that we have to embrace the CJEU’s jurisdiction to have a suitable partnership agreement with the 27 members of the EU.

[Baroness Ludford]

In his lengthy reply, the Minister appears to perpetuate some of the misunderstanding that underlay the Prime Minister’s speech on Friday, which is that somehow if you mirror the laws of the EU 27 and start from the same position, you do not need the rest of what Commission jargon calls the ecosystem—in other words, the common rules and the enforcement of institutional and supervisory mechanisms. Surely that is the difference between the EU context and the Hague and Lugano conventions, and accounts for the difference between having regard to and mutually recognising and enforcing judgments. It is part of a complex of arrangements. There is a qualitative difference between the international arrangements and the EU arrangements, which does not seem to come through in the Minister’s response.

[Lord Keen of Elie]

With respect, neither I nor the Prime Minister misunderstood any of that. With great respect, I want to correct the noble Baroness on one point: that ecosystem is simply not required for mutual recognition and enforcement of judgments by two separate jurisdictions. That happens between the countries of the Lugano convention and countries in the EU in any event. I am talking about starting from the same point, with common rules regarding judicial recognition and enforcement, and moving from there to the negotiation of a new partnership. We do not foresee the sort of difficulty that the noble Baroness alludes to in that context.

At this stage, I want to come back to the point I was seeking to make. First, it is not necessary for the UK to subject itself unilaterally to the CJEU’s jurisdiction to secure a reciprocal agreement. Many other countries do that. Secondly, in any event, the Government have been clear throughout debate on the Bill that it is in no way designed to legislate for any future agreement between the UK and the EU. That is not the purpose of the Bill. We cannot unilaterally legislate for our future relationship with the EU simply by including in our domestic legislation certain provisions about recognition of family law, maintenance and other agreements—a point that the noble Baroness, Lady Sherlock, readily acknowledged at the outset of her opening remarks some considerable time ago.

I understand that the intention behind Amendment 120 is to make sure that there can be continued application of international agreements, such as the Hague 2007 maintenance convention, which the UK currently operates by virtue of its membership of the EU. Of course, we are intent on doing that; as I noted earlier, we understand that there is a potential three-month gap there, which we need to address. I hope I can reassure the noble Baroness that we are clearly intent on securing an agreement, albeit not as an EU member and not subject to the direct jurisdiction of the CJEU, which ensures that we can maintain the highest standards of family law and mutual recognition, whether it be jurisdiction, choice of law or enforcement. I invite the noble Baroness to withdraw her amendment.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Baroness Ludford

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Taylor of Bolton]

I accept that, but the Minister is assuming that legislation is always very neatly compartmentalised in a way which would allow that. My fear is that there will be enabling parts of legislation that could be caught up because some subsection could be EU related.

[Baroness Ludford (LD)]

Could I just follow on from that by expressing a related concern? We know what the Government’s attitude is to the Charter of Fundamental Rights and we know that the Bill provides that there is no right of action on the basis of general principles of EU law. I am thinking aloud here, but the concern might be that even with only a strict and narrow interpretation of which bits of, say, the Equality Act are EU derived and therefore subject to all the consequences, including Clause 6, we might miss some of the context in which those narrow provisions should be interpreted if we were to remain in the EU and fully under the jurisdiction of the court.

[Lord Keen of Elie]

I am not sure I agree with that proposition. But of course, at the end of the day, pursuant to Clause 7, it will be necessary to bring forward regulations which address amendments that are required in regards to retained EU law. At that point of course, those regulations will be the subject of scrutiny to ensure that they are limited to those aspects which are EU-derived law and therefore EU retained law. I do not believe that that is necessarily a problem, but I hear what the noble Baroness has said. We will of course take into consideration any difficulties that could arise in that context.

I wish to add one further point that I meant to make at the outset in response to the noble Lord, Lord Adonis. He referred to me as the Advocate-General. I am not appearing here as a law officer, and nothing I say should be construed as law officer advice. I am appearing here as a Minister in respect of the Bill. I would not want there to be any misunderstanding in the light of his reference.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

[Baroness Ludford]

Nobody, I think, has questioned that. We are talking about directives.

[Lord Keen of Elie]

That is what we began talking about but the noble Baroness, Lady Hayter, for example, has referred to regulations. I will come on to address the point she made, but regulations have direct effect and if a regulation has direct effect by exit day it will form part of retained EU law. Directives have no direct effect in the domestic law of a member state. Directives have to be the subject of implementation and in that regard a transition period is given to member states for the implementation of a directive. There may be directives that have been adopted prior to the exit date which have a transitional period that will expire by the exit date specified in the Bill. In that event, the Government have indicated that they will seek to implement those directives that require implementation by a transitional date before the exit date. Therefore, they will become part of retained EU law because they will have been implemented in our domestic law.

--- Later in debate ---

[Lord Keen of Elie]

No, that would not be covered, because in those circumstances there would have been no crystallisation of the direct right prior to the exit date. That is our position with regard to that point—but I am obliged to the noble and learned Lord for his acknowledgment that we are answering questions as they are posed. I was rather hoping that my noble and learned friend Lord Mackay of Clashfern might actually come forward to the Front Bench and allow me to retire to the second tier in order that this matter could be dealt with even more cogently than I am able to do.

I return for just a moment to the actual amendment. I have sought to emphasise—clearly, I hope—why the amendment is not appropriate in the present context. It would simply take away from one of the principal purposes of the Bill, which is to determine that there is an exit date—a cut-off point—when we will determine the scope of our own domestic law. I can quite understand the point made by the noble Baroness, Lady Young, about emerging provisions in the EU that have been worked on for many years and that would bring about appropriate and attractive standards for various aspects of our life in the United Kingdom—but, of course, it would be perfectly open to this Parliament to decide, in light of what has already been agreed in Europe, that it would be appropriate to have these standards in our domestic law, and we will have the means to do that. It is just that they will not form part of retained EU law for the purposes of this Bill.

On the noble Baroness’s amendment, I respectfully suggest that the mechanism that she has put forward—that you somehow retain the ECA for some purpose after it has been repealed—simply would not work. I appreciate that this is Committee, and we are actually looking at the underlying purpose of the proposed amendment and therefore have to consider whether we find that attractive and then look for a way to make it work. Nevertheless, it is appropriate to notice that the actual mechanism proposed in the amendment would not work.

I hope that I have addressed most of the points raised by noble Lords, but I agree with the observations made by the noble and learned Lord, Lord Brown, my noble and learned friend Lord Mackay and the noble Lord, Lord Pannick, with regard to what this Bill is attempting to achieve. It is attempting to achieve certainty as to the scope of our domestic law at exit date. That is its purpose, and we must keep that in mind.

[Baroness Ludford]

Will the Minister take another look at Clause 4(2)(b), which is a double negative? It talks about rights that are,

“not of a kind recognised”,

by the European Court or any UK court. When he was talking earlier about a directive that had direct effect, I think I recall him saying that it would have had to be recognised by a court decision as having direct effect—but the wording of Clause 4(2)(b) suggests a direct effect if it is “of a kind” that has been recognised by the European Court or a UK court. He might not be able to reply immediately but perhaps, when we come to Clause 4, he could look back at what he said today on directives with direct effect and be sure that there is a logical fitting together with Clause 4(2)(b).

[Lord Keen of Elie]

In my submission, it fits entirely with what is said in Clause 4(2)(b) and is consistent with that. It points to the necessity of there having been a recognition by the European Court or a court or tribunal in the United Kingdom for those purposes. It may be that the noble Baroness will want to take issue in due course with the use of the word “kind”, and no doubt we will come to that when we consider amendments to Clause 4.

Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Debate between Lord Keen of Elie and Baroness Ludford

Wednesday 20th December 2017 Lords Chamber

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

My Lords, on the noble Lord’s last point, it is not for me to anticipate the Uber decision but the hint might be in the existence of the motor vehicles.

I begin by congratulating the noble Baroness, Lady Kennedy of The Shaws, on securing this debate. The question of the EU’s departure from the European Union is well-trodden ground in this House by now, but the question of future civil judicial co-operation between the United Kingdom and the EU has perhaps not received as much attention. I commend her and her sub-committee for the work they have done to address this. I would also like to thank, through her, the witnesses who contributed to the inquiry and whose experience and expertise we value very highly. It is because of that expertise that this is such a commendable report.

The debate gives me the opportunity to set out to your Lordships the Government’s position on this technical but important subject, to the extent that I can while we are in the course of a negotiating process. Before addressing the specific issue of civil judicial co-operation, and dealing with the points made by your Lordships, it may be worth some scene-setting.

Since June, we have worked intensively with our European partners to settle the issues in the first phase of our negotiations to leave the EU. We have made good progress and reached agreement with the EU’s negotiators on some very difficult issues. Nearly two weeks ago, the United Kingdom and the EU negotiating teams issued a joint report on the progress they have made on the three areas covered in the first phase of the negotiations. It proposes a fair deal on citizens’ rights that allows for UK and EU citizens to get on with their lives broadly as now in the country in which they live; it agrees a financial settlement that honours the commitments we undertook as members of the EU, involving a fair delivery of our obligations; and it contains an agreement on the island of Ireland that preserves the territorial integrity of the United Kingdom and the stability that has been brought about by the Belfast agreement.

As your Lordships will know, last week, the European Council agreed that this report represents sufficient progress and that we should now move on to the talks about our future partnership. This allows the next stage of negotiations to proceed, and the Council has agreed that there should be quick progress on agreeing an implementation period.

On that implementation period, the United Kingdom Government’s proposal is to ensure that businesses and people have time to adjust, and to allow new systems to be put in place. We believe that any implementation period should be strictly time limited—to around two years, as noble Lords are aware. I emphasise that it should be based on the existing structure of EU rules and regulations, during which the UK and the EU would have access to one another’s markets on current terms, and the UK would take part in existing security and other measures. Of course we welcome that progress. It is in everyone’s interests that the talks now move on swiftly during the second phase.

On the subject of this debate, many noble Lords, particularly the noble Lord, Lord Cashman, used the term “certainty and predictability”. Let me be clear that there is consensus about that. Of course, we seek to secure certainty and predictability. But a third word was used by a number of noble Lords that I would also emphasise—reciprocity. Just as we look from the United Kingdom to the EU 27, with concern about how we will ensure suitable civil judicial co-operation following our exit from the European Union, so those 27 countries look to the United Kingdom in the same way, anxious as they are, just like us, to ensure certainty and predictability, because that is what reciprocity brings.

Of course, what we call civil judicial co-operation is the framework that governs a whole spectrum of legal systems work and cross-border situations and provides rules not only in the context of commercial cases, but in the context of family law. As has been noted, the current EU rules are contained in regulations such as the Brussels Ia—the revised regulation on jurisdiction recognition and enforcement of judgments—the Rome I regulation on choice of law in contracts, and the Brussels II regulation, which covers jurisdictional rules for recognition of divorces, and for recognition and enforcement of parental responsibility and other matters. It does not stop there. There is also the insolvency regulation, which is equally important to commerce across the whole of Europe and which covers jurisdictional rules on the recognition of insolvency proceedings, and there are others. There is a guide to them in the paper that was issued by the Government in August this year.

These instruments provide a legal route to resolving, with certainty and predictability, difficult cross-border situations that can arise whether in the context of commercial law or family law. Clearly, these various measures have over the years benefited many citizens of the United Kingdom. Equally, they have benefited many citizens of the EU 27. They have benefited small and large businesses throughout the United Kingdom and small and large businesses throughout Europe. I am obliged for the noble Lord’s encouragement on that.

It is against that background that I emphasise that we are all concerned to secure certainty and predictability. For example, we know that about 3 million EU citizens currently live in the United Kingdom. We wish to ensure that their rights can be certain and predictable going forward. Equally, about 1 million British citizens live in the other EU 27 countries and we wish the same for them. Again, I underline the point about reciprocity. It is not essentially in anyone’s interests to move backwards and wind down from such a position.

Indeed, that certainty is a key foundation of economic growth. Confidence in cross-border commercial contracts and investment relationships is underpinned and enhanced by clear rules governing each country’s jurisdiction, its courts’ responsibility for resolving disputes and its ability to avoid what the noble Earl, Lord Kinnoull, referred to as the Italian torpedo, which was a feature of commercial litigation in Europe until the revision of the Brussels I regulation some years ago. Everyone understands the need for an effective system of cross-border judicial recognition, if I can call it that, in the context of the choice of law, choice of jurisdiction and enforcement proceedings. That is not cut down by any red line. I will return to that in the context of something that was said by the noble Baroness, Lady Kennedy.

The Government are seeking a future agreement with the European Union that allows for close and comprehensive cross-border co-operation. I will return to the point raised by the noble and learned Lord, Lord Hope, about what we are seeking in that context. But what we want to do is reflect as closely as possible the substantive principles of the current framework. They work well for citizens in the United Kingdom and throughout Europe. In addition to other regulations, I mentioned such things as the insolvency regulations, the EU service regulations, the taking of evidence regulations and, in the context of Brussels II and family matters, the Maintenance Regulation. They are all-embracing.

To touch on one or two points, under the repeal Bill, we will incorporate into domestic law the Rome I and Rome II instruments on choice of law and applicable law in contractual and non-contractual matters. If we do that, and Rome I and Rome II already apply in the other EU 27 states, then essentially we will have achieved a level playing field in those matters. There is no need for us to do more than that in the context of Rome I and Rome II.

Of course, in other areas, it will be necessary for us to engage in negotiations with certain parties. The matter does not just stop at the stage of Brussels and the EU; there are countries beyond the European Union. We have signed up to agreements in civil judicial co-operation that apply well beyond the EU: reference was made to the council of the Hague Conference, which gives rise to a series of Hague Conventions in this area. There are also the UNCITRAL—United Nations Commission on International Trade Law—provisions as well, which apply beyond the EU. We will continue to embrace all of those.

The noble Lord, Lord Beecham, suggested that there were perhaps three Hague Conventions that we were interested in, but it goes much further than that. The UK is a signatory to the 1965 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; the 1970 Convention on the Recognition of Divorces and Legal Separations, which I accept does not go as far as Brussels II; the 1980 Convention on the Civil Aspects of International Child Abduction; the 1993 Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption; and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. So, there is a great deal more to this subject than just Brussels I, Brussels Ia and Brussels II.

Reference was also made to the Lugano convention, which is the convention on judicial co-operation between the EU and the other EEA countries—Norway, Ireland and Liechtenstein. Denmark has a separate agreement, which I will not go into detail on at the moment. I want to make one point about the Lugano convention, which I accept has not caught up with Brussels Ia —although it is up to speed with Brussels I. It is wrong to suggest that any red line, as it is termed, with regard to the CJEU’s jurisdiction is a barrier. The Lugano convention is not subject to the direct jurisdiction of the CJEU, even though the EU is a party to the Lugano convention. So, there are instruments through which we can achieve judicial co-operation, outwith the direct jurisdiction of the CJEU. That reflects the steps that we are endeavouring to take in present negotiations, and indeed what drives them.

[Baroness Ludford (LD)]

The point that was made in our report, which I certainly tried to make, was that we were not sure how it would be possible for the UK to accede to the Lugano convention in practice, given that it is between the EU and three EEA countries. I did not mention the red line about the CJEU in the context of the Lugano convention; the question was more about how we could manage to insert ourselves into the Lugano convention.

[Lord Keen of Elie]

There is no legal barrier to us becoming a party to the Lugano convention, but that would be a subject of negotiation with the council to the Lugano convention. I believe it was the noble Baroness, Lady Kennedy, who suggested that the CJEU was somehow a red line in this respect. I emphasise that it is not a red line, but it is an issue that has to be addressed in the context of the present negotiations.

I will touch on one or two points made by noble Lords in the debate, beginning with the noble Baroness, Lady Kennedy of The Shaws. Again, I go back briefly to her suggestion that our rejection of the direct jurisdiction of the CJEU had a profound effect on civil judicial co-operation. I simply cannot accept that. It does not apply in the context of the UNCITRAL rules, the Hague convention or Lugano. Therefore, there are clearly areas where we can negotiate and determine judicial co-operation without accepting the direct jurisdiction of that court.

The noble Baroness also observed that Lugano had not been upgraded. I think she suggested it was essentially stuck in aspect, or something of that kind.

Criminal Justice: Interpretation and Translation Services

Debate between Lord Keen of Elie and Baroness Ludford

Wednesday 29th November 2017 Lords Chamber

[Lord Keen of Elie]

We are confident about the quality of the translation and interpretation services provided to the courts at present, which have been provided under the present contractual regime since 31 October 2016.

[Baroness Ludford (LD)]

My Lords, the Minster will know that this is an obligation of an EU directive. I was a rapporteur in the European Parliament; the UK Government chose to opt into this. Not only do we maintain standards that help standards across the whole EU but, if we Brexit, we will obviously want to keep up those standards so that we can operate such things as the European arrest warrant without our operation of it being called into question.

[Lord Keen of Elie]

Of course, that is one of the objectives of the withdrawal Bill, which noble Lords will have the opportunity to pass in the near future to ensure that we maintain our legal obligations in that context. Over and above the European regulation—I believe it is a regulation and not a directive—there is of course the convention right under Article 6 and the common-law right of access to justice.