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

Debate between Lord Keen of Elie and Lord Davies of Stamford

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

I will welcome the noble Lord’s comments. His reference to Latin will no doubt enhance this debate. However, for the moment, I entirely concur with the observations of the noble and learned Lord, Lord Mackay of Clashfern. It would be foolish in the extreme to make an important—indeed, significant—political decision on the basis of a risk that can genuinely be regarded as negligible.

[Lord Davies of Stamford]

My Lords, I apologise for my slip. The word “egregious” derives from the Latin “e grege”—outside the flock; in other words, it means abnormal, out of the ordinary. “Shocking” is the wrong translation.

The elaborate piece of theatre that the Government staged last night in Strasbourg and the opinion of the Attorney-General have been designed to ensure that we do not stay in the customs union. As the Minister himself acknowledged, staying in a customs union would be greatly in the national interest. The Government’s policy in this matter is 180 degrees in the wrong direction. Industry and commerce are crying out for the opportunity to stay in the customs union. If we did find that opportunity, I hope we would grasp it. It is much more likely to come to us not from bad faith on the part of the Commission or the Irish but simply because the whole idea of establishing a frontier that is not a frontier proves to be hocus-pocus, as my noble friend Lord Bassam has shown. No such technology is even under study at present. Anyone who knows anything about venture capital knows that the chance of a blue-sky idea becoming viable and generating money is, at best, one in 20.

Privately Financed Prisons

Debate between Lord Keen of Elie and Lord Davies of Stamford

Wednesday 27th June 2018 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, is it not the case that you can achieve considerable savings in a prison system if prisons are designed and built from the start with a view to the maximally efficient use of staff, bearing in mind the need to achieve targeted levels of out-of-cell time and community time for inmates? Is it not the case that you do not get those savings unless the same organisation, be it private or public sector, is responsible for managing the prison—at least for the payout period for the necessary financing—as well as for the design and construction? Otherwise, there will be no incentive to build a prison to maximally efficient levels.

[Lord Keen of Elie]

My Lords, I do not accept that there is such a necessary link between the construction of the infrastructure and the operation of the prison. Nevertheless, we are committed to replacing our present prison estate with modern facilities to achieve the very outcome referred to by the noble Lord.

Rape Trials

Debate between Lord Keen of Elie and Lord Davies of Stamford

Wednesday 6th June 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, I am not aware of any such cases. However, clearly, we have a series of filter mechanisms in our criminal justice system that includes the criminal cases review operation where there has already been a conviction and material comes to light.

[Lord Davies of Stamford (Lab)]

My Lords, the noble and learned Lord has referred several times to the obligations placed on the defence by the 1996 Act. Is he suggesting or is he aware of any evidence which indicates that some of these cases that have collapsed have done so as a result of a failure by the defence to meet its obligations under that Act?

[Lord Keen of Elie]

Recent inquiries indicated that in something like 25% of cases a defence statement was not produced or not produced timeously.

Worboys Case and the Parole Board

Debate between Lord Keen of Elie and Lord Davies of Stamford

Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

There are no immediate proposals in that regard. As the noble and learned Lord is aware, the LASPO provisions are currently under review.

[Lord Davies of Stamford (Lab)]

My Lords, the head of the Parole Board has resigned and, as usual, the Secretary of State and the Government sail on with apparent impunity. However, the failings revealed by this case—the excessive secrecy, the failure to consult victims, the apparent inadequacy of training and the failure to look at previous offences—were part of the system’s structure for years and years. They should have been known about—if, indeed, they were not—and the Government should have addressed them a long time ago. Has the noble and learned Lord persuaded himself that the Government have no responsibility at all for these shortcomings?

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Davies of Stamford

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

[Lord Keen of Elie]

I am not going to indulge in an issue regarding maternity at this stage. Let us try to keep focus on the amendment, shall we?

We are all aware of the issue and we are also aware of the agreement that has been entered into to protect the rights of EU citizens and their family members living in the UK and of UK nationals living in the EU until the end of the implementation period, set at 31 December 2020. During the implementation period, individuals will still be fully covered by the EU acquis. UK nationals will be able to continue to move around the EU 27 member states and will have the freedom to move to another member state to live and work, as long as they do so before the end of the implementation period.

That reminds me of the point made by the noble Lord, Lord Kerr, about Article 32 of the withdrawal agreement. The position is this: what was proposed in Article 32 was removed as there was no actual agreement on that point. Therefore, there was no reason to have a legal text covering a point that was not the subject of agreement. The United Kingdom pushed strongly for the inclusion of ongoing movement rights during the first phase of the negotiations, but the European Union was not yet ready to include them. Of course, it remains an issue that we wish to pursue. We have already made that clear.

To come back to the amendment itself, it is simply not feasible for us to set upon a course of negotiation that is doomed to failure. We cannot secure EU citizenship for citizens of the United Kingdom after we leave the EU. That is the short point to be made. Therefore, the amendment would set the Government on a course of negotiation that would effectively prevent the present Bill—

[Lord Davies of Stamford]

My Lords—

[Lord Keen of Elie]

I shall just finish the sentence, so will the noble Lord please sit down? It would effectively prevent the present Bill getting on to the statute book and achieving its intended purpose: to ensure legal certainty at the point at which we leave the European Union.

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[Lord Keen of Elie]

I am perfectly content to look at the opinion.

[Lord Davies of Stamford]

I will take up a point that the noble and learned Lord was making before he took the very sensible and helpful intervention from the noble Lord, Lord Wigley. We all accept—I explicitly accepted it in my remarks—that EU citizenship is not within the Government’s gift. I accept, too, that there is no practical possibility of the Government negotiating it in foreseeable circumstances with the EU. What I am asking for and what I hope the noble and learned Lord can offer on behalf of the Government is that they will place no obstacle in the way and will do anything that appears possible to facilitate and support any move by any of us to try to achieve from the European Union some recognition of the fact that we are European citizens and we will continue to feel that way even after Brexit, if Brexit, unfortunately, takes place.

[Lord Keen of Elie]

The reality is that if Brexit takes place we will not continue to be EU citizens.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Davies of Stamford

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

[Lord Davies of Stamford]

The noble Lord, Lord Pannick, dealt with that point. In practice, damages are not usually available under judicial review. The general view of the public is that there is a very small chance of getting damages that way. That is the difference between that and Francovich, and it is very important.

[Lord Keen of Elie]

With respect, it is not. I have to say to the noble Lord that Francovich damages are a rare remedy, as I have already indicated. Damages in the context of judicial review are not so uncommon as the noble Lord was suggesting. They are available as a remedy, albeit in limited circumstances.

--- Later in debate ---

[Lord Keen of Elie]

In response to the noble Lord’s observations, we are dealing in the context of Francovich with the court having to find that there has been a serious failure with regard to an EU obligation, and I suggest that that is not very far from the test of misfeasance in the context of judicial review.

[Lord Davies of Stamford]

My Lords, I am grateful to everybody who has taken part in this interesting debate. I think that anybody listening in from outside will be impressed that we are working hard on a very serious matter at quarter to one in the morning.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Davies of Stamford

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

[Lord Davies of Stamford]

I am grateful to the noble and learned Lord for giving way. Of course, we hope that we are not talking about any of those things. We hope that we are not talking about radical changes and reductions in some of the essential regulation which we have all said is so necessary. However, we need a little bit more than hope. We need some evidence of the Government’s commitment to restrain themselves when it comes to using these powers.

[Lord Keen of Elie]

That is why Clause 7 is drafted in the terms in which the noble Lord will find it in the Bill.

Reference was also made to the provisions of paragraph 3 of Schedule 8. I am not sure how the noble Lord, Lord Pannick, interpreted that paragraph but let us be clear: it refers to existing powers, not to powers created under this Bill. Those powers already exist in respect of existing legislation. They are not being extended. If the Government truly intended to bring about wholesale change to these policy areas, and could do so on the basis of their existing powers, perhaps they might have done so already. The provision does not extend to these powers. Therefore, again, with respect, it appears to me that the matter is being taken out of context. However, I would be happy to look at the opinion on this from Pushpinder Saini referred to by the noble Lord, Lord Pannick.