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

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I concur with both of my noble friend’s observations.

[Lord Wallace of Tankerness (LD)]

My Lords, the noble and learned Lord emphasised the importance in the joint instrument of urgency. Indeed, paragraph 7 of the Attorney-General’s opinion today states:

“Therefore, provided the United Kingdom can clearly demonstrate in practice that it is effectively organised and prepared to maintain the urgent pace of negotiations that they imply, the EU could not fail to match it without being at risk of breaching the best endeavours obligation”.


As the Minister has emphasised that this is political, perhaps rather more than legal, I ask him a political question. Can he give the House three examples of when, since March 2017, the United Kingdom Government, in dealing with Brexit, have clearly demonstrated in practice that it is effectively organised?

[Lord Keen of Elie]

Respectfully, it appears to me that we have demonstrated that throughout the process.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

Report: 5th sitting (Hansard): House of Lords
Wednesday 2nd May 2018 Lords Chamber

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

My Lords, we are dealing here with truly technical amendments to ensure that the provisions of the Bill deliver the intended policy. They achieve two things. The first is to clarify how the requirement for regulations made by devolved Ministers under Schedule 2 to be within devolved competence interacts with the principle of severance applied by the courts.

The normal practice would be that when a Minister makes regulations that include, for instance, 10 different provisions, should one of those provisions be outwith the scope of the power, the courts would not strike down the regulations as a whole, they would simply sever the offending provision and allow the remaining nine provisions to stand as law. Some concerns were raised that the requirements in the Bill might imply that this standard practice should not occur. The amendments therefore make it clear that when a provision is outside devolved competence, only that provision would be ultra vires and not the whole instrument in which the provision is included.

The second purpose of the amendments is to allow for a devolved Minister and a UK Minister acting jointly to make provision that would not be in the competence of the devolved Minister acting alone. It has always been the Government’s intention that the Schedule 2 powers can be exercised jointly to allow us to work together in areas where we may need to make the same or related changes to retained EU law and so that, where appropriate, those changes can be subject to formal scrutiny and approval in both this Parliament and the relevant devolved legislature.

We believe it is right that, for instance, where a UK Minister and a Welsh Minister jointly make regulations in relation to a matter that concerns the England/Wales border, those regulations can include both the provision for England and the provision for Wales, even though it would not be within the Welsh Minister’s competence to make the provision in relation to England if they were acting alone.

We will also be bringing forward at Third Reading a number of further drafting changes to permit combinations of instruments beyond what is normally possible, reflecting the level of joint working that will be needed in relation to these powers. I will be speaking to the Government’s Clause 11 amendments shortly, when we reach the group beginning Amendment 89DA. I am sure noble Lords will appreciate that we have a number of further groups to get through on other parts of the devolution provisions before we reach that debate. The amendments provide what I hope to be welcome legal clarity. They reflect standard practice and the mechanisms for good, collaborative joint working between the Administrations. I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, I am grateful to the noble and learned Lord for his explanation of these technical amendments. Can he say whether there is agreement among the devolved Administrations and the UK Government on these amendments?

[Lord Griffiths of Burry Port (Lab)]

My Lords, at last we have reached this stage, although I find it a little off-putting that we are coming to consequential, technical matters before we look at the meaty issue; but that will come, as was said.

I would like to pay the respects of those on our Benches to the serious way in which the Government have contributed through the joint ministerial group to the success of the proposals, and thank them for bringing them to us now. I would also like to thank Mark Drakeford from the Welsh Government and Mike Russell from the Scottish Government for the part they played, even if the latter has thus far been unable formally to sign up to the inter-governmental process. As the Minister said, we are going to discuss Clause 11 and neither of us can wait for that. It is coming in more detail later this evening. However, we on these Benches recognise and appreciate the progress that has been made. We have come a long way since the Bill was published and it is against that backdrop that this and subsequent groups of amendments should be considered.

The Labour Party has always been the party of devolution. While we will be watching the Government’s treatment of the devolved Administrations very closely throughout the Brexit process—that is our job—we recognise the genuine progress that has been made and welcome the amendments in this group. They allow United Kingdom and devolved Ministers jointly to exercise powers in Schedule 2 in order to make provisions that could not be made by a devolved Minister acting alone. This clarifies the use of so-called composite instruments, as the Minister said, and we hope paves the way for collaborative working between the devolved Administrations and the UK Government.

Other amendments in the group improve the position regarding ultra vires provision within instruments made under Schedule 2. I believe that the devolved Administrations previously raised concerns with the Government as to whether the courts would permit those parts of an instrument that were within competence to remain law. We are glad that Ministers and officials have responded positively to the appeals from the devolved bodies and that the amendments provide greater clarity for all involved. The group amounts to just one piece in the jigsaw puzzle. I usually start my jigsaws with the edge pieces. This looks like putting a piece in the middle and working around it in due course. It is a piece that these Benches are happy to support.

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[Lord Wallace of Tankerness]

It seems that we have an explanation. Were officials of the Scottish Government involved in that and, if in-depth work has been done, would the Minister help the House by publishing it?

[Lord Keen of Elie]

I am not in a position to say that such work would be published, because of course it has been on the basis of engagement between officials dealing with this. I do not believe that there is any official report to that effect; it is just a matter of the product of engagement between officials negotiating these matters. Therefore I cannot indicate that we will publish anything in that regard. That is to try to explain the position with regard to the sunset clauses in the regulations. I turn to the question—

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

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

[Lord Keen of Elie]

With respect to the noble Baroness, businesses affect individuals, so it is not appropriate to try to draw a distinction between citizens’ rights and businesses in that context. The right to work involves the right to maintain a business in various countries; you cannot simply draw them apart in that way. As regards regards timing, of course we are concerned to ensure that we achieve a withdrawal agreement sooner rather than later. That is why these negotiations are under way. If perchance no agreement is achieved—and I am not aware of anyone who wishes this, although others will perhaps assert the contrary—we will have to look at how we then deal with matters in the absence of that international agreement.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord and I hear what he is saying about the duality principle. Can he conceive of any circumstances in which the consensus reached between the United Kingdom and the European Union on the way in which we should treat EU citizens in the United Kingdom and United Kingdom citizens in the EU would not be taken forward or would fall apart? Can he see any circumstances where that might happen?

[Lord Keen of Elie]

At the present time, no, but we are only now undertaking the detailed negotiation of the withdrawal agreement. It may be, for example, that the situation of UK citizens in Europe will alter during the course of those negotiations. It may be that the European Parliament will take a different view on how the rights and interests of those UK citizens in Europe should be approached. The noble and learned Lord will recall that, at an earlier stage, there were some suggestions that the rights of UK citizens in Europe would be limited to the member state in which they were resident at the time of exit. There are all sorts of possibilities and I am not going to indulge in an analysis of those possibilities—we are concerned with achieving certainty. We have achieved, by way of the joint report in December, an expression of joint opinion about where we are going, with regard not only to the rights of EU citizens in the United Kingdom but also to the rights of UK citizens in the EU. Of course we want to bring that in to the final withdrawal agreement, in order that we can then draw it down and implement it in domestic law.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

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

[Lord Keen of Elie]

The noble Baroness is confusing two distinct issues. The Bill is about the retention in domestic law of EU retained law at the point of Brexit. The Prime Minister was addressing our future relationship with the other 27 members of the EU in the context of our seeking to align in some areas and not align in others. This will be the subject of negotiation which is about to commence and will apply in agreeing a transitional period, and then our post-transitional period relationship with the other EU 27. They are two distinct issues.

On the noble and learned Lord’s observation about the general principles, these are retained as an interpretive tool. It may impact upon the matter of remedies but not on the issue of rights. One has to bear in mind that distinction.

Reference was made by the noble and learned Lord, Lord Wallace, to the case of Benkharbouche, which was a classic example of where the issue of rights had to be distinguished from the issue of remedies. There were rights arising under Article 6 of the convention but there was an also an issue as to whether or not certain principles arising by reference to the charter were also in play. I believe it was Article 46 of the charter that was referred to by Lord Sumption, who delivered the opinion of the court. The point was that while the rights could be identified by reference to the convention or the charter, the particular remedy there arose by reference to the charter. I acknowledge that that is the case.

[Lord Wallace of Tankerness]

Is that not part of the point? An expectation has been built up by what has been said—that, on Brexit date plus one, people will be in the same position. The noble and learned Lord is admitting that they will not be in the same position because they may have rights but they will no longer necessarily have remedies.

[Lord Keen of Elie]

They will have rights but they may not have the same remedy, but that is quite distinct. We are talking about maintaining rights at the point when we leave.

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[Lord Keen of Elie]

No, I do not accept that. I certainly do not accept that that is the position under reference to the Walker case. However, I am content to come back to the noble and learned Lord on that question on the Walker case but I do not accept that it falls in the way he indicates.

Perhaps I can make some progress. We remain of the view that after we cease to be a member of the EU there is a real risk of allowing general principle challenges to continue indefinitely, which is what these amendments would allow. Simply put, this would not be in keeping with our undertaking—our promise—to return sovereignty to this Parliament.

Of course we are aware of the concerns that have been raised, particularly about the impact on those whose cause of action precedes exit but who are unable, for whatever reason, to issue proceedings before some change takes effect. That is why we brought forward amendments on Report in the other place to provide reassurance that where a breach of the general principles occurred or gave rise to a potential claim before exit day—that is the important point—individuals and businesses will still have the opportunity to make certain claims based on the breach of the general principles of EU law for a period of three months after exit date. That period of three months after exit date is taken to mirror the period normally allowed in the context of applications for judicial review. That strikes a balance between ensuring that, on the one hand, individuals and businesses will still have the opportunity to bring these challenges and, on the other hand, delivering the result of the referendum and maintaining our parliamentary sovereignty.

While we believe that the compromises we have already made on the general principles of EU law have improved the Bill, the Government are looking again at these issues to see whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. That is because we understand the complexities of the issues that arise in the context of Schedule 1 and we are looking at those at present.

With that, I hope that the noble Baroness will see fit to withdraw her amendment.

[Lord Wallace of Tankerness]

My Lords—

[Lord Keen of Elie]

As the noble and learned Lord rises to his feet I am reminded of his reference to whether paragraph 3 includes Acts of the Scottish Parliament passed before Brexit day and not within competence. If they are not within competence, they are not law.

[Lord Wallace of Tankerness]

Perhaps I may explore that with the noble and learned Lord. The point I was making was that if the Acts were passed before Brexit day and they were challenged on the basis that the alleged incompetence was that they were not consistent with the general principles of EU law, would that challenge fail on Brexit day plus one, because it would mean that the court could no longer determine it?

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[Lord Keen of Elie]

In the event that an Act of the Scottish Parliament was enacted beyond the competence of the Parliament, it would not and would never have been law. That is the position pursuant to Sections 28 and 29 of the Scotland Act 1998. I hope that that clarifies the point, but if I have misunderstood the noble and learned Lord—

[Lord Wallace of Tankerness]

Let me see if I can make it a bit clearer.

[Lord Keen of Elie]

I am quite prepared to discuss the point with the noble and learned Lord because it may be that we will look more closely at those provisions in the Scotland Act in the very near future.

Leveson Inquiry Update

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

Thursday 1st March 2018 Lords Chamber

[Lord Keen of Elie]

The noble Baroness makes a very good point. That is why we are taking forward the digital charter, so that we can have an overarching programme of work to agree the norms and rules for that online world, as well as for the printed press.

[Lord Wallace of Tankerness (LD)]

My Lords, a number of victims of press intrusion sat in a room with the former Prime Minister, David Cameron, when he solemnly promised that the Leveson inquiry would be completed. If the noble and learned Lord were sitting in the room with those same victims today, what would he say to them in the light of the Statement about that broken promise?

[Lord Keen of Elie]

I am not in a position to comment upon the broken promise but, as the noble and learned Lord observed, he was referring to the position of the former Prime Minister.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

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

[Lord Keen of Elie]

I am obliged to the noble and learned Lord and the noble Lord not only for explaining the amendment but for their endorsement of it.

In responding to Amendments 16, 17 and 342, I start by reaffirming our view that Clause 2 is an essential provision for providing certainty and continuity regarding our law after exit day. I think that that is plain to all noble Lords. I shall then say a little more about why Clause 2 must stand part of the Bill. This clause, along with Clauses 3 and 4, delivers one of the core purposes of this Bill: maximising certainty for individuals and businesses when we leave the EU by ensuring that, so far as is practical, the laws that we have now will continue to apply. In that respect, Clause 2 preserves the domestic law that we have made to implement our EU obligations; we have touched on that already.

More particularly, on the point raised by the noble and learned Lord in this regard, Amendment 342 seeks to clarify that Acts of the Scottish Parliament are included within the clause only if they have received Royal Assent before exit day. I suspect that Amendment 16 also seeks to provide clarity on that same point. I am grateful for the opportunity to clarify any uncertainty that there may be here. Clause 2(2) states that,

“‘EU-derived domestic legislation’ means any enactment”

that is described in that subsection. Clause 14 defines the term “enactment” to include an enactment contained in an Act of the Scottish Parliament. An Act of the Scottish Parliament must have received Royal Assent; until that time, it is a Bill. Section 28(2) of the Scotland Act 1998 provides for this. So an Act of the Scottish Parliament that has only been passed and not received Royal Assent does not fall within this definition, and would not be categorised as EU-derived domestic legislation for the purposes of this Bill. I believe that the noble and learned Lord rather suspected that this might be the case; his concern seemed to be one of certainty as regards the drafting.

The same applies in relation to Acts of the UK Parliament. The reference to “passed” in Clause 2(2)(b) is therefore a reference to the purpose for which the enactment was passed, not whether it was passed. In that context, I venture to suggest that Amendments 16 and 342 are unnecessary.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. He does get my point that it is for clarity; in Section 28 of the Scotland Act, there is a distinction made between being passed and Royal Assent. It is the word “passed” that appears in Clause 14(1) and the noble and learned Lord knows as well as anyone that, when statute uses the same word, it may—not unreasonably—have the same interpretation. Yet, a Bill “passed” by the Scottish Parliament is not the same as “enacted”. Simply, does it really go to the heart of this Bill that the Government could not bring forward an amendment just to make it clear beyond doubt and, therefore, not allow unnecessary litigation at some stage in the future? Because you can bet your life that something will come up when someone finds some clever point.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord. I do not have any red lines so far as Clause 2 is concerned in this context. It appears to me that if there is concern about a lack of certainty, we can take that into consideration, and we will do so in time for Report. I do not indicate that we will bring forward any amendment in regard to this; it seems to me, as the noble and learned Lord will appreciate, that context is everything. We have to read the provision and the use of “passed” in Clause 14 in the context of what is said in Clause 2(2), but I hear what he says. I am not seeking to strike it down, as it were, at this stage; I am merely seeking to explain the approach that we have taken to this issue and why we consider that, on the face of it, Amendments 16 and 342 are unnecessary.

Amendment 17 seeks to mirror the language of Clause 3 in terms of the cut-off point for inclusion within the scope of the clause. Clause 2 of course works in conjunction with Clause 3, which converts direct EU legislation into domestic law. Both clauses take a snapshot of the law that is in place immediately before exit day. EU-derived domestic law will fall into the scope of Clause 2 if it has been enacted before exit day—that is, if it can be said to be on the statute book at that time. There is of course a different test employed for direct EU legislation to be retained under Clause 3, because direct EU legislation must be operative within UK law “immediately before exit day”, as defined in Clause 3(3). That is why there is a distinction between the two clauses; they serve distinct purposes.

As I say, we are listening and we will consider further the point made by the noble and learned Lord and by the noble Lord, Lord Foulkes. Having given an explanation of the Government’s position, I hope that, at this stage, they will see fit to withdraw or not move these amendments.

[Lord Wallace of Tankerness]

I am very grateful to the noble and learned Lord for his response and his willingness to look at this and take on board the comments made. A simple amendment could be made that in no way detracts from the purpose of this Bill; if anything, it would add to that purpose in terms of legal certainty. Using the word “passed”, which, from what the noble and learned Lord said, has a different meaning in two Acts, is not helpful. I do not think the amendment in any way departs from or mitigates what the Bill seeks to achieve and I therefore strongly encourage the noble and learned Lord and his colleagues to bring forward a simple amendment to provide legal certainty. I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Keen of Elie and Lord Wallace of Tankerness

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Keen of Elie]

Because this is the only case in which we have identified that situation. There is no other reason for proceeding in this way except for that.

[Lord Wallace of Tankerness]

If, as the noble and learned Lord said on numerous occasions in his reply, the rights established in the charter are already there in our domestic law, what is lost by keeping the charter? If those rights are already there, the Government cannot be worried about anything if they retain the charter.

[Lord Keen of Elie]

I must compliment the noble and learned Lord on his second sight. As I was about to say, the next argument put to us is that if we say that the charter is not adding anything, what is the problem with keeping it? I hope that is a fair summary of the noble and learned Lord’s intervention. With respect, this argument simply fails to take account of how the charter applies at present. The charter and the rights that it reaffirmed have a limited application. They apply to the EU institutions all of the time, but apply only to member states acting within the scope of EU law. We will no longer be a member state and so we will be no longer be acting within the scope of EU law. Simply retaining the charter would not reflect the realities of leaving the EU. It cannot be right that a document called the Charter of Fundamental Rights of the European Union could continue to be used as the justification to bring cases that would lead ultimately to the striking down of UK primary legislation after we leave the EU. Outside our membership of the EU, it is simply not appropriate to retain the charter.

There are also practical questions to consider. It would be no simple matter to say that we are keeping the charter. The amendments in this group all attempt, in various ways, to solve the riddle of how an instrument inherently linked to and constrained by our membership of the EU could apply purely domestically. They each highlight the complexity involved in such an exercise.

In Amendment 13A, the noble and learned Lord, Lord Goldsmith, requires the Government to lay a report on how the charter will continue to apply to retained EU law after we leave the EU. However, his other amendments are far from clear on precisely how he intends the charter to have effect domestically after exit. They would remove the exclusion of the charter provided for in Clause 5, presumably with the intention that it would now form part of retained EU law. I note that one of his amendments would excise the definition of what the charter is from the Bill, despite going on to say that this undefined, unclear thing will continue to have effect in relation to retained EU law under Clauses 2, 3 and 4. What would our courts make of that? Many articles of the charter set out principles, not rights, which can be relied on directly by individuals. How would these have effect after exit? Eight articles of the charter constitute rights intrinsically linked to EU citizenship—for example, the right to vote in an EU parliamentary election. Of course, they claw at the air—we appreciate that—but they do nothing.

Let us pause again on the fact that the charter applies to member states only when acting within the scope of EU law. Presumably, if retained under the Bill, the charter would then apply only when we were acting within the scope of retained EU law, which I believe is the elaboration that the noble and learned Lord made in response to the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Over time, our domestic law will evolve and new laws will be made by this sovereign Parliament and the devolved legislatures that will start to replace and supersede this category of retained EU law. We would be retaining the charter, in whatever capacity the noble and learned Lord intends, only for an ever-diminishing proportion of our law. This further risks incorporating complexity and confusion into our domestic statute book.

We should not overstate the accessibility of the current rights regime, which relies on citizens knowing—