European Union (Notification of Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Report stage (Hansard): House of Lords
Tuesday 7th March 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I am sure that the Government share the sentiments expressed from the Front Bench opposite—indeed, from both Front Benches opposite. The proposal would be entirely in the interests of the smooth development of policy in this difficult area, which I am sure we all understand is extremely difficult. The more help the Government can get, the better, and I think that they are sufficiently humble to know that.

If there were any slackness on the part of the Government, we would have plenty of means in this Parliament for getting them to respond, but I do not agree with putting that into an Act of Parliament, and the reason for that is simple. If something is put into a general Act of Parliament, the idea is that the courts are the enforcers, but one thing that the courts cannot do, in view of the Bill of Rights, is to interfere in proceedings in Parliament. Therefore, this is useless as a formal amendment, but the spirit of it is first-class. I feel almost certain that my noble and learned friend will be able to accept that, because the Minister in the Commons said just as much in a passage that I may refer to later.

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

My Lords, I am obliged for the contributions that have been made to the debate. This short Bill has already invoked many hours of debate, so I intend to keep my remarks very brief.

I endorse the observations of the noble and learned Lord, Lord Mackay of Clashfern, both as to the appropriateness of this amendment and as to the spirit in which it will be and is being received by the Government. As noble Lords will be aware, the Prime Minister gives a Statement to the other place following European Councils. We know that there will be a Council this month, and indeed quarterly thereafter. That means that a Statement will be made to Parliament at least once every quarter on European issues, and it will be repeated in this House. Of course, that is just the beginning of a much wider process over which this Parliament has control at the end of the day.

DExEU Ministers have responded to more than 600 parliamentary Written Questions, appeared at 13 Select Committees and given six Oral Statements to the House on developments regarding our exit. The Secretary of State has agreed to give evidence to the Exiting the EU Select Committee on 15 March, alongside the Permanent Secretary at DExEU, and will shortly afterwards give evidence to the Lords EU Committee on 22 March.

The Government are committed to parliamentary scrutiny, and Parliament will play a key role in scrutinising and shaping our withdrawal. As my noble friend Lord Bridges observed last week, we have had take-note debates, debates on Select Committee reports, debates in government time and Select Committee appearances. All this will continue in order that Parliament can scrutinise the development of negotiations in so far as is possible to put those in the public domain and in so far as they come into the public domain.

The noble Baroness, Lady Hayter, referred to secrets, and the noble Baroness, Lady Ludford, referred to nasty secrets. This may reflect a difference of approach, but at the end of the day there will not be any secrets. You cannot conduct such a process in secret, ultimately, and then expect Parliament to consider that it is being kept properly informed, as it should be, if you have what are termed secrets. We are committed to keeping Parliament at least as well informed as the European Parliament as negotiations progress.

A Bill to repeal the European Communities Act will follow. There will be primary legislation on issues such as immigration and customs, and a vote at the end with regard to the process on the final deal to exit.

With all that in mind, I will pose a few questions. Is the Prime Minister already bound to give a Statement to Parliament after every quarterly European Council? The answer is yes.

Have the Government been willing to give frequent Statements to Parliament? The answer is yes.

Have DExEU Ministers and other government Ministers appeared in front of Select Committees? The answer is yes.

Have the Government listened to Select Committee reports? The answer is yes; we published a White Paper in February this year.

Do the Government aim to respond to the Select Committee reports about Brexit within two months? The answer is yes.

Have the Government said they will give more information to Parliament, so long as it does not undermine our negotiating position? The answer is yes.

Then there is the core question: what is the present Bill about? The Bill is about giving the Prime Minister the authority to give notice of withdrawal from the European Union.

With great respect to the House and to all noble Lords, let us proceed and pass this Bill. It will not be improved by unnecessary decoration and, as the noble and learned Lord, Lord Mackay of Clashfern, has already observed, it is not appropriate that this amendment should proceed. As I believe all Members of your Lordships’ House who have spoken would acknowledge, it is not necessary that this amendment should proceed in these circumstances. Therefore, I invite the noble Lords to withdraw the amendment.

Family Court

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Monday 9th January 2017 Lords Chamber

[Lord Mackay of Clashfern (Con)]

I should have thought that the principle which precludes the victim in the criminal courts being cross-examined by the alleged abuser would apply equally in the family court. That principle should apply. Will the Minister confirm that cross-examination is intended to be an opportunity to ask questions to ensure that the tribunal has a proper balance on the facts and is not an occasion on which to offer insults to the party being cross-examined?

[Lord Keen of Elie]

I am obliged to my noble and learned friend, who has a great deal more experience in these areas than I would ever hope to achieve. Clearly, the purpose of cross-examination, whether it is to challenge credibility or reliability or a particular account, should be pursued by way of questions. It is not an opportunity to make statements to the court or to give evidence and should never be an opportunity to resort to abuse, whether of a victim, a witness or the court itself.

Investigatory Powers Bill

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.

The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.

The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.

The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.

Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.

The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.

Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.

Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.

I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.

I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.

[Lord Mackay of Clashfern]

My Lords, I am extremely happy that the noble and learned Lord should look at this matter further. To take his example on Greece and Albania, I think the correct way to deal with that would be to say that it was an inference from the legal advice that he might be going to Albania and you could separate that out from the advice itself as a matter of edit, allowing for inferences from the nature of the arrangement. I think that a little bit of, shall I say, creative editing would make this possible. I am very keen to conserve the idea that legal professional privilege is absolute—that is the purpose of my amendment. I believe that with a bit of ingenuity the Government could devise a formula that would allow that to happen. In the meantime, I am happy not to press my amendment on the basis that it will be considered by the Government, and if necessary, I can return to it at Third Reading.

Immigration Bill

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Tuesday 15th March 2016 Lords Chamber

[Lord Keen of Elie]

I am obliged to the noble Baroness. The answer is that, in those circumstances, bail could still be granted. It will be dependent on the individual conditions that arise in a particular case. But I make it absolutely clear that it would still be possible for bail to be granted in such circumstances.

[Lord Mackay of Clashfern (Con)]

My Lords, I was one of those who expressed concern at the possibility of the Secretary of State being able to overrule a judicial determination by the tribunal. I am very grateful for the very quick response I had to that concern, which was shared by a number of my noble and learned friends.

Scotland Bill

Debate between Lord Keen of Elie and Lord Mackay of Clashfern

Tuesday 19th January 2016 Lords Chamber

[Lord Keen of Elie]

That is, as it were, a known unknown at this stage. There are no particular tribunals in mind so far as that is concerned. However, if further tribunals are created, it is contemplated that they should not transfer automatically but should be subject to the same conditionality that is thought appropriate for existing tribunals. It is at that level of generality. It is not contemplated that there is any particular tribunal that will be addressed by that provision. I hope that answers the noble and learned Lord’s question and invite him to withdraw the amendment.

[Lord Mackay of Clashfern (Con)]

On the point made by the noble and learned Lord, Lord Wallace of Tankerness, about taking cases from England, where the delays in particular situations can cause difficulties, and bringing them to Scotland, the definition of a Scottish tribunal in new sub-paragraph (11)(a) is as one,

“that does not have functions in or as regards any other country or territory, except for purposes ancillary to its functions in or as regards Scotland”.

I wonder whether there is any difficulty in relation to what I would have thought was a good idea—namely, to have the possibility of cases being referred to Scotland where that would help scheduling. However, it would be necessary for the law to be applied if a case was transferred to be the law that would be applied before it was transferred.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Mackay of Clashfern. First of all, of course, we are dealing with reserved matters. If we were dealing with immigration, for example—a matter of reserved law—there could be circumstances in which the application of Scots law led to a different outcome from the application of English law. I notice that new sub-paragraph (11) in Clause 37 talks about the meaning of a Scottish tribunal, but that, on the face of it, does not appear to determine the scope of its jurisdiction to hear cases from outside Scotland. It is more a question of what is a Scottish case in that context. That is something that can be looked at, I suggest, in the context of each Order in Council for the transfer of each tribunal. There may be room to facilitate the transfer of cases in the manner suggested. That is something that we will take away and consider.