Justice and Security (Northern Ireland) Act 2007 (Extension of duration of non-jury trial provisions) Order 2019
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Lord Thomas of Gresford (LD)
My Lords, I have considerable experience of jury trials, and of non-jury trials in other jurisdictions, and I know which I prefer. The jury trial is superior in efficiency and fairness, and, in particular, in maintaining public confidence in the system; but it is with a heavy heart that we accept the need for these provisions and we will not object to the order that is sought.
There is still a clear danger from small groups of dissidents, as we saw on 18 April with the tragic murder of Lyra McKee in the Creggan area of Derry, and last week in the placing of a bomb under a policeman’s car at a golf club in east Belfast. As Chief Constable George Hamilton said:
“Those who carried out this despicable attack have nothing to offer Northern Ireland but a return to the pain and suffering of the past”.
As the Minister has pointed out, the threat level remains at “severe”, where it has been for the last 10 years. Such actions make jury trials very difficult in a very small number of cases in Northern Ireland.
Northern Ireland is a relatively small jurisdiction, but these actions reflect the fact that it is a divided society, despite the Good Friday agreement being signed 21 years ago, and paramilitary organisations are still active in many parts of Northern Ireland. Political motivations are no longer at the forefront. Paramilitary organisations have turned to crime, and they enforce discipline through violence and intimidation in those tight-knit communities. Any residents who informed on a member of a paramilitary organisation to the police would be at risk.
The independent reviewer, Mr David Seymour, cites figures from 2016 and 2017, which show that 197 offences—my Lords, I feel that I have to resume my place.
Lord Lexden (Con)
My Lords, the need for this order arises from continuing paramilitary activity in Northern Ireland. First, could my noble friend comment on the work being done by the Independent Reporting Commission—established by our Government in conjunction with the Republic’s Government in 2017—and its effectiveness? There was considerable debate in this House when the commission was under preparation. Its objective is,
“to monitor progress on tackling paramilitary activity”.
It would be useful to hear how this joint body set up by Dublin and London is getting on.
Secondly, could my noble friend comment on the panel set up by the Northern Ireland Executive? Its task is to provide a strategy for the disbandment of paramilitary groups. In view of the significance of paramilitary groups, a comment on the work of these two bodies would be useful.
Parliament: Freedom of Speech and the Rule of Law
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Lord Thomas of Gresford (LD)
My Lords, naturally the disclosure of material contrary to a court order offends against the training of all lawyers. We are brought up to respect the rule of law, to keep our mouths shut when it is appropriate, to respect the courts and their judgments and not to criticise them. I am wary that this approach may not have the same cataclysmic effect upon those who are not lawyers.
This issue came to a head in 2011 with John Hemming, the Liberal Democrat Member of Parliament for Birmingham, Yardley from 2005 to 2015. I have been a guest in his house and I know him very well. John Hemming was a scholar in theoretical, atomic and nuclear physics at Magdalen College, Oxford, and he became a millionaire with a software business by the age of 27, at which point he took up Liberal politics. He really was a good, old-fashioned Liberal campaigner. He passionately opposed super-injunctions, orders forbidding the revelation not just of the parties but even of the existence of the injunction itself. He considered that their use was the preserve of the rich, because only the rich could go to court and obtain them. I was very interested to hear from the noble Lord, Lord Hain, that Jess Phillips, who succeeded him in Birmingham, Yardley, made precisely the same point—that this is the preserve of the rich. In 2011 John Hemming revealed a number of well-known figures under parliamentary privilege: the chairman of Barclays Bank, Mr Goodwin and a well-known Welsh footballer. The result of that seems to be that the use of super-injunctions has declined—you can spend a lot of money and find that, if it is mentioned in Parliament, you have wasted it all.
Similarly, another friend of mine, Paul Farrelly, Member of Parliament for Newcastle-under-Lyme in Staffordshire, disclosed the existence of a super-injunction in the Trafigura scandal by means of a Parliamentary Question. Trafigura was dumping toxic waste products in Côte d’Ivoire, causing injury in the nature of burns to skin and lungs to 30,000 people. These are exceptional cases involving very considerable public interest. I oppose altering our disciplinary procedures so as to make such disclosures a breach of the Code of Conduct. It seems to me that, in exceptional circumstances, it may be justified to do what the noble Lord, Lord Hain, did—although I must say that, as a lawyer, I was shocked at the time, I can tell him that, and I do not think it quite comes into the category of some of the other disclosures that have been made. However, I think it is highly unwise to make such disclosures.
First, I think that a Member of Parliament who does so must examine his own motives. It may be a vehicle for a lowly Member of Parliament to indulge in publicity he would not otherwise get, as a result of the dramatic disclosure he makes and all the press that follows.
Secondly, it is obviously wide open to abuse. I do not suggest that abuse has taken place in any of the cases I have mentioned, but it would be possible for parties to proceedings and the press to approach a particular Member and induce him in one way or another to ask a Parliamentary Question under the cloak of privilege. We should be very concerned about that.
Thirdly, the Member in question is not a caped crusader, going around the world to seek justice and end injustice wherever it may be; someone must put him up to the particular issue, as we have heard from the noble Lord, Lord Hain. Whether it could amount to a criminal conspiracy to perform an unlawful act is doubtful, but it is inappropriate for a representative of the people to engage in an unlawful act, and it is unlawful to breach a court injunction. The fact that you are an MP and will not be punished for mentioning it in Parliament is an exercise of the privilege of Parliament, not the privilege of the Member. The Member is not cloaked and protected by the armour of this principle. It rests with Parliament itself.
I do not criticise the noble Lord, Lord Hain, for doing what he did. I am sure that he had very good reasons and was moved to do so. However, it is unwise, and anyone who seeks to do it should examine their conscience very carefully.
Devolved Administrations: 20th Anniversary
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Lord Thomas of Gresford (LD)
My Lords, I remember very well 18 September 1997, when the referendum result was announced. The cracach were at the count in the College of Music and Drama. The rest of us—the workers—were at the Park Hotel. Tension mounted, because the yes vote was falling behind. Then the very last result was that Carmarthenshire had voted by 65.5% in favour of an assembly. That was 6,721 votes out of the well over 1 million cast altogether.
It was a consolation for the noble Lord, Lord Bourne, that it was as narrow as that. He was the chairman of the Just Say No campaign. For me, it was the end of a long campaign for devolution. My noble friend Lady Randerson referred to the Government of Wales Bill of 1967, presented in the House of Commons by Emlyn Hooson MP. Emlyn was a very good delegator. “Just draft a Government of Wales Bill for me, will you, Martin?” he said. That is how the Bill came into being. It was presented in this House by Lord Ogmore. It may interest the noble Lord, Lord Bourne, and other noble Lords to know that the assembly I proposed was called the Senedd. Now, 50 years later, we are finally getting there—I have always been 50 years ahead of my time.
My next memory is of 26 May 1999, the day the Assembly opened. I was there as a guest and was in the Assembly chamber. I had been invited by my noble friend Lady Humphreys, a new Member, to look at her desk and all the accoutrements there. I noticed on the television in the chamber that the Queen had just stopped outside the building in her landau. I thought I had better get out of there, so I went through the door. There was a long lobby, which had been very full, but was now completely empty. I saw 150 metres of red carpet, with the Queen at the far end being greeted by Dafydd Elis-Thomas, the then convenor. I wondered what to do. Should I go left or right? There was no exit, but there was a little alcove. In the alcove was the chorus of the Welsh National Opera, who were to sing a specially composed piece as the Queen went past. I joined the basses. I held out my programme and, as the Queen went past, John Redwood had nothing on me and the passion with which I delivered that piece, I can tell you.
The Assembly grew in prestige and embedded itself in the national life of Wales. Other noble Lords have spoken of its achievements and I will not repeat them. What was important was that the elections were based on a form of proportionality. It was not the most satisfactory one but it was the result of a compromise, a deal, between Labour, who were all for first past the post, the noble Lord, Lord Carlile of Berriew, for us, and the noble Lord, Lord Wigley, for Plaid Cymru. We had a degree of proportionality. Of course, this resulted in coalition Governments who were remarkably stable. Labour led every Administration and has continued to do so—I agree with the noble Lord, Lord Wigley, that there should be a change—but Liberal Democrat and Plaid Cymru Ministers acting in coalition, separately and at different times have made very significant contributions. Kirsty Williams, the current Liberal Democrat Member of the Assembly Government, is certainly making a magnificent contribution.
In 2011, the confidence of the Welsh people in the new Assembly was shown by the two-thirds majority who voted in the national referendum in favour of full legislative powers. That is not finished. We need, and have always needed, to expand the numbers from 60 to 90. Indeed, the Assembly building was built with that capacity, just in case we ever get round to increasing the number of Members. Accountability in the Welsh Assembly is not as strong because of this. Some 40% of the Members are Ministers of one sort or another.
I turn to the present. At the moment, it is like a car crash. I do not know if noble Lords have ever been in a car crash, but I remember two in particular, which happened when I was driving on ice. You have no control; you cannot steer or brake. All you can do is wait for the bang. In one of those crashes I hit a line of fence posts, two of which went through the windscreen with sufficient power to whistle past my ear and go out through the back. They went all the way through the car and another came in from the side. The feeling you cannot control is how I feel at the moment, considering where we are in politics: how have we got here?
What contribution have the devolved Administrations been asked to make to the negotiations? After the 2016 referendum, a joint ministerial council was established—the JMC (EU Negotiations). Its terms of reference were to,
“seek to agree a UK approach to, and objectives for, Article 50 negotiations”.
That was before the withdrawal process had even begun. It had a few preliminary meetings but did not meet at all between February and October 2017. Article 50 was invoked without any attempt to develop a common UK approach. The devolved Administrations were ignored. The European Union (Withdrawal) Bill was published without consulting Cardiff and Edinburgh at all. There was no attempt to involve Members or officials from the devolved Administrations in the negotiating team. Protests from Mark Drakeford for Wales and Mike Russell for Scotland to David Davis, who was then trying to negotiate, were ignored and not replied to.
After considerable pressure, including from this House, the JMC (EU Negotiations) met in October 2017 and agreed that powers repatriated from Brussels would in devolved areas pass to the devolved Administrations, but that new “common frameworks” would be required to limit policy divergence in the UK. A new inter-ministerial group was created in February 2019 on the key areas of environment, food and rural affairs. The analysis we saw last April shows that the Government expect there to be 21 areas where legislative frameworks may be required, chiefly in agriculture, fisheries, health and food standards.
But has there been any agreement between the UK Government and the devolved Administrations? Not at all. Scotland refused legislative consent to the European Union (Withdrawal) Bill and has indicated it will withhold consent from the Trade Bill, the Agriculture Bill, the Fisheries Bill and any other Brexit Bills, whenever they resume their stumbling progress. Two months ago, in March, Mike Russell, the Brexit chief in Scotland, said that,
“the Scottish Government is refusing to have any truck with the UK Government’s invented concept of the supposed needs of some non-existent ‘UK Single Market’”.
Noble Lords might think that there is a considerable amount of work to be done to get the Scots, and indeed the Welsh, on side. Never mind trade deals all around the world if Brexit goes through, with people shooting off to China or Australia; what about holding the United Kingdom together? I believe, and I have said in the House before, that Brexit means a united Ireland and an independent Scotland. The tectonic plates will move inexorably in that direction.
In Wales, there is particular concern about the loss of European structural and investment funds, which have been very important to Wales and made us net recipients of funds from Europe. The UK shared prosperity fund has been loudly trumpeted, but is it anything more than a name? Who is designing it? What are the criteria for eligibility? Will it be GVA per head, as now? The noble Lord, Lord Wigley, pointed out that Wales has the lowest GVA per head at I think £16,000, as opposed to the English £27,000. Will it be the regional human poverty index? Will it be measures of disposable income? In particular, how will this shared prosperity fund be shared? As a devolved matter, will it be administered by a Welsh, Scottish or Northern Irish Administration? If we crash out on 31 October, will this shared prosperity fund suddenly come into being on 1 November?
When you step out of the car crash and see the remains all around you, you look for help and guidance. Where will we find the vision, leadership and energy to deal with these internal pressures and tensions—never mind foreign trade—to manufacture the economic frameworks, to design the shared prosperity fund, and to reconcile the devolved Administrations and their Parliaments, which have been disgracefully overlooked in the negotiations? Will we look to Mr Nigel Farage and his cronies to provide that leadership, vision and reconciliation? I do not think so. He said this morning that he is looking forward to returning to the pub next week, where no doubt he will hold court about the great betrayal. There is the whole raft of Tory aspirants to leadership running around presenting their wares to their members. Which one of them, still declaring his or her eternal support for Theresa May while manning the telephone banks, has the courage and the ability to do what is so necessary for Wales, Scotland and Northern Ireland?
The debate is about the role of the devolved Administrations in the governance of this country. All I can say is, “Don’t panic! Don’t panic!”
Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019
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Lord Thomas of Gresford (LD)
My Lords, I think it very appropriate that the Ministry of Justice should decide as a principle as far as possible to preserve the existing rules as they currently apply in the UK immediately after exit day. The purpose is,
“to provide maximum certainty and stability for businesses and individuals”.
However, I am concerned about the impact on business, even though the impact assessment does not throw up anything in particular. I am always very conscious of the strength of Hong Kong, which built its reputation and financial power on the fact that it uses English common law as the basis of its legal system. That means that contracts are readily made and understood, which has been of great economic benefit to Hong Kong. I notice that the impact assessment refers to the,
“strong international reputation as a centre of legal excellence”,
that this country currently enjoys. Anyone connected with the law knows that our legal profession has a great reputation, English law is frequently the preferred law and English courts are used even though a particular dispute has nothing to do with England, so this is a very profitable part of the legal world.
I shall take as an example one matter referred to in paragraph 7.7 of the Explanatory Memorandum, which refers to,
“the law applicable to non-contractual obligations arising from infringements of unitary EU intellectual property rights … Trade Marks … Design Rights and … Plant Variety Rights. These unitary EU IP rights will no longer apply in the UK … and UK courts will no longer hear proceedings relating to such rights after exit day”.
It seems to me that there is a whole area of law which may be cut out from the jurisdiction of English courts and the services of English lawyers.
That is compounded by the fact that these regulations remove the ability of UK courts to refer questions of interpretation of the 1980 Rome convention to the Court of Justice of the European Union—to my mind, that is a significant restriction—just as the interpretation of retained EU law generally cannot be decided by that court. We are going from a well understood legal system to something that is much more limited than we have been used to.
On the broad basis, however, the fact that the rights are generally retained is to be welcomed.
Baroness Chakrabarti (Lab)
My Lords, in an attempt once more to be succinct, I can echo the point that the noble Lord, Lord Thomas, was making. The concerns from this side are essentially about regulatory diversion. I do not think anybody is going to object to these regulations; the concern is with ongoing regulatory divergence and its potential impact, whether it is on unfair competition cases or IP cases and so on. Perhaps the Minister might consider briefly that risk of regulatory divergence in his reply.
In relation to insurance, the Explanatory Memorandum says:
“The Government engaged with representatives of the insurance industry”,
in relation to “insurance risks”. Can the Minister outline the types of risks identified in that engagement? We are told that banks and insurers are shifting hundreds of billions of pounds in assets out of the UK ahead of exit day to keep their contracts and policies within the EU area. We have learned that Aviva, Britain’s second largest insurer, will transfer around £9 billion in assets to a new Irish company, for example. Does the Minister agree with having that sort of risk to our economy? Does this reflect the concern about different outcomes that could result from insurance contract cases being resolved differently in our courts and those of our EU partners in the future?
As I say, my general proposition is on the risks of regulatory divergence, but one can hardly object to the instrument itself.
Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019
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Lord Deben (Con)
My Lords, I want to make a couple of points that I have made on previous occasions. I am always unhappy about things that deal with the law being discussed only by lawyers. It seems to me that non-lawyers should sometimes refer to the matters in front of us.
I heard the Minister say, kindly, that we now have the impact assessment. I am always fascinated by how the Government can say that they do not intend to provide guidance because a measure relates mainly to technical changes before they have produced the impact assessment. That seems like a decision before the fact. It is also interesting that the Explanatory Memorandum states:
“No, or no significant, impact on the private, voluntary or public sector is foreseen … The impact of this instrument, including on individuals, is negligible”.
That cannot be true if, for example, this information is not available; the noble and learned Lord made the point a moment ago that that will have a considerable impact on individuals.
The point I really want to make to the Minister is that this is another example of trying to deal with Alice in Wonderland. The idea that we would seriously not give the information we have to the rest of the European Union, nor hope that they would give us that information, seems outwith any kind of sense. I am perfectly prepared to accept that we will have to pass these regulations—because, no doubt, if that situation arose when we are not a member of the European Union, many of these provisions would not function in any case—but I wish that Ministers would just admit every time that it is much better to have a system in which you share than not. We are all fixated by the lunacy of the whole business of Brexit but that does not mean that a little humility from Ministers would not be welcome. They could say, “We are sorry to be in this position because it makes things very much worse”, instead of pretending that everything will be the same, that we will just fix things, that everything is perfectly okay and that if we have a no-deal situation, this will just go ahead. That flies in the face of the truth.
Every time we discuss these statutory instruments, we increasingly recognise what a nonsense the whole proposition is. I just want to hear that occasionally from the Government. They do not seem satisfactorily engaged in trying to solve the problem anyway, but it would be nice to hear an occasional ministerial comment that they are sorry to have to put this forward because it is obviously not a sensible situation or better than what we have at the moment.
Lord Thomas of Gresford (LD)
My Lords, the regulations deal with the current situation of mutual assistance, not just the passing of information from one country to another. That is what we are concerned with.
The noble and learned Lord, Lord Thomas of Cwmgiedd, referred to taking account of convictions. As he explained, a lot of work has been done to make sure that convictions are presented mutually in an agreed format, which assists a sentencing judge greatly. The regulations—particularly in Part 6, entitled “Taking account of convictions”—provide that all individuals with prior convictions from outside the UK, whether from the EU or non-EU countries, are treated the same. Clearly, as the noble and learned Lord pointed out, there is a developed system of mutual assistance relating to convictions. I would be grateful if the Minister could explain the difference between the system developed between EU member states and that developed with non-EU states “outside the UK”. Those are the words used in the impact assessment. What difference in standards can we expect between the two systems?
Perhaps I may turn first to compensation for victims of crime. A significant change has been made because, at the moment, there is an obligation on EU member states not simply to offer advice but to co-operate in providing access to their compensation schemes. It is proposed that that system should go and the Criminal Injuries Compensation Authority will simply offer advice instead. We know from the impact assessment that, for example, it is not known at the moment how many British nationals have applied for compensation from EU compensation schemes because victims can apply directly. I am anxious to know whether the Minister can enlighten us about the nature of the advice that will be given to people injured as a result of criminal activity abroad as compared with the mutual assistance given under the current scheme. It seems that there could be a very considerable difference between the two situations. The Explanatory Memorandum states that there is currently,
“a system of formal communication between the relevant authorities”.
That will go, so what is the advice? If an injured person happens to learn about the scheme covering the offer of advice from the Criminal Injuries Compensation Authority, presumably he or she will have to take the initiative of approaching the CICA to obtain it.
I turn to mutual assistance. Of course, EU protection orders and supervision systems have not been used considerably, as the memorandum makes clear. These are important possibilities that no doubt could have been developed more than they have. For example, if a person has engaged in violent conduct towards their spouse in a European country and the spouse has taken out a protection order, there is great value in that being enforced in this country as well without any further proceedings. However, according to the regulations before us, it seems that separate and additional applications for protection will have to be made to the British courts.
It is a similar case as regards supervision orders. If a person found guilty of criminal conduct abroad to the effect that a supervision order has been made against him moves to this country, unless there is a separate and additional application to a British court, the protection against him that a supervision order provides will no longer exist.
The mutual recognition of financial penalties is another important area. Currently, a fine imposed in one EU country can be enforced in another. What mechanism does the Ministry have in mind following the implementation of this instrument—should that ever come about, which seems highly unlikely—for recovering financial penalties imposed in another EU country? How will that compare with the recovery of financial penalties from non-EU countries at present?
Although these regulations appear complicated and technical, there is an important principle of mutual assistance involved. Among EU members, we have built up systems that protect the people of this country. These are all to be swept away and replaced by separate applications and so on. This seems an undesirable outcome that has not been given the publicity it deserves.
Brexit: Powers of EU-UK Joint Committee
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Lord Thomas of Gresford (LD)
My Lords, the UK and the EU are obliged to implement the joint committee’s decisions, which will, under Article 166, have the same legal effect as the agreement itself—but there will be no ratification of any decisions taken by the joint committee, obviously. In the absence of any agreement on an issue by the joint committee, under Article 170, the issue will then be referred to the arbitration panel, whose decision will be final and binding. Again, it will not go back to Parliament for discussion. What control, if any, does the House of Commons have over the joint committee’s decisions?
Lord Keen of Elie
My Lords, there are two obvious controls. First, Ministers or others will attend the joint committee with a mandate from Parliament. Secondly, pursuant to Section 25(2) of the Constitutional Reform and Governance Act 2010, a decision that constitutes an amendment to part of the treaty or replaces part of the treaty made by the joint committee would require ratification.
Lord Keen of Elie
My Lords, United Kingdom Ministers always speak with one voice.
Lord Thomas of Gresford
The Minister said that there will not be two civil servants and we hear that there might be Ministers. Who will be the UK’s representatives on the joint committee, and how will they attain a mandate from the House of Commons—one which those negotiating recently most clearly did not have?
Lord Keen of Elie
My Lords, the final constitution of the joint committee has not yet been agreed. It will be addressed once exit has taken place. However, those who represent the United Kingdom on the joint committee, be they Ministers or others, will carry with them a mandate. They will be answerable to Parliament for the decisions made by the joint committee and the joint committee cannot implement decisions unless they are agreed to by both parties.
Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019
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Lord Hope of Craighead (CB)
My Lords, the amendment which the regulation seeks to make is obviously highly desirable. However, I have a question for the Minister, because I cannot for the life of me see how it achieves its purpose in expanding the financial remedies available under domestic legislation. As far as I can see, the only passage which might possibly have a bearing is Regulation 2(2)(a), where we are told that the words,
“in relation to matters relating to maintenance”,
are being deleted. Without more context, it is extremely difficult to see whether this achieves what the regulation seeks to do. I am happy to take the Minister’s assurance that it does, or perhaps he can explain it a bit more. It is characteristic that these instruments are so economically worded that, without a whole lot of legislative material in hand, it is sometimes hard to make sense of them.
Lord Thomas of Gresford (LD)
My Lords, this is a necessary rectification of the earlier regulations. Subject to what has already been expressed, we have no objection to it.
Lord Beecham (Lab)
My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.
This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?
This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.
The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.
Services of Lawyers and Lawyer’s Practice (Amendment) (EU Exit) Regulations 2019
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this draft amending instrument forms part of our ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively. Your Lordships will be aware that, in preparation for leaving the EU, the Government have signed a UK-Switzerland citizens’ rights agreement, as they have done with the EEA states that are outside the EU. This instrument will modify the way in which relevant retained EU law is revoked in order to retain regulatory provisions for those in scope of the UK-Switzerland citizens’ rights agreement if a withdrawal agreement with the EU is not agreed and implemented before the UK’s exit from the EU. This draft instrument makes changes to the relevant legislation in England and Wales and in Northern Ireland. Scotland is legislating separately with the same policy intention.
Noble Lords will be aware that the UK, as an EU member state, is required to implement two European directives for legal services which are extended to Swiss nationals under the EU-Switzerland free movement of persons agreement. As part of preparations to leave the EU, the Government laid a statutory instrument to amend the domestic legislation implementing these two directives. The original statutory instrument revokes the relevant provisions in the event that the UK leaves the EU without a deal.
This draft instrument amends the way in which the domestic legislation is revoked, retaining some provisions for Swiss lawyers and those in scope of the UK-Switzerland citizens’ rights agreement. This is to ensure that retained EU law operates effectively in the event that the UK leaves the EU without a deal, and that deficiencies in retained EU law are remedied in a way that reflects our agreement with Switzerland.
The UK-Switzerland citizens’ rights agreement grandfathers recognition and establishment rights for UK and Swiss lawyers, provided that they have transferred into a legal profession of the other state before exit day. It also protects the rights of UK and Swiss lawyers who are established, registered and providing services under their home title. So long as they remain registered, they will be able to continue to provide services as they do now. It also provides a transition period of four years for lawyers to register as registered European lawyers or to transfer into a legal profession of the other state under these arrangements. These arrangements include citizens who have started but not finished studying for professional legal qualifications.
Finally, it allows lawyers and law firms to continue to provide up to 90 days’ temporary services a year for at least five years, where a contract to provide such services was agreed and started before exit. Swiss lawyers will also be able to apply within four years of exit day to join an English and Welsh or Northern Irish profession on the basis of three years’ qualifying experience as a registered European lawyer, in addition to routes available to foreign-qualified lawyers. For Swiss lawyers and law firms with interests in the UK, this instrument will bring legal certainty. It will effectively implement in domestic law the obligations that we have undertaken at the level of international law pursuant to the UK-Switzerland citizens’ rights agreement, which is why it is necessary to bring forward this instrument at this time. I beg to move.
Lord Thomas of Gresford (LD)
My Lords, I congratulate the Ministry of Justice team on producing an impact assessment which would meet the deepest desires of the noble Lords, Lord Adonis and Lord Foulkes. It is excellent. It fully covers the material and, combined with the evidence base, must have involved a great deal of work. The tragedy is that it refers only to 10 Swiss lawyers in this country—and not only that but it has no effect unless we leave the EU without a deal, which looks increasingly unlikely, having regard to the Motions passed in the House below. However, in itself this instrument contains nothing objectionable.
Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration
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Lord Goldsmith (Lab)
My Lords, I am grateful to the noble and learned Lord for repeating the Statement made by the right honourable Attorney-General in another place. The purpose of the Statement was to provide the Attorney-General’s opinion on the implications of the three documents produced following the Prime Minister’s dash to Strasbourg yesterday. The purpose was, of course, what the Prime Minister had promised to negotiate, referring to,
“not a further exchange of letters, but a significant and legally binding change to the withdrawal agreement”.
According to the Mail on Sunday—not a newspaper that I necessarily follow in any respect—the Attorney-General is reported to have said:
“I will not change my opinion unless I’m sure there is no legal risk of us being indefinitely detained in the backstop. I am putting my hand on my heart. I will not change my opinion unless we have a text that shows the risk has been eliminated. I would not put my name to anything less”.
Before considering the merits of what the Prime Minister has obtained it is worth considering what has not been achieved. As I predicted in the debate yesterday—was it only yesterday?—there is no change to the withdrawal agreement. Its 597 pages remain unchanged. That is not entirely true, because they have been reduced to a smaller volume. The text, however, is completely unchanged. So too are the 26 pages—I think now 28 pages—of the political declaration.
The result is that the legal risk remains unchanged. As the Attorney-General states in paragraph 19 of his latest opinion:
“The legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise”—
that is, the situation in which no new agreement is reached—
“the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”
I had the opportunity to hear the Attorney-General’s Statement in another place this morning, and I understood him to be reconfirming that position in his answers.
It is also worth restating that—despite rumours to the contrary—there are no changes to the arbitration provisions and no new system of arbitration: it will still be lawyers who make this decision. It also follows that the statement in paragraph 16 of the Attorney-General’s opinion of 13 November 2018 still stands. That statement was as follows:
“It is difficult to conclude otherwise than that the Protocol is intended to subsist even when negotiations have clearly broken down. The ordinary meaning of the provisions set out above and considered in their context allows no obvious room for the termination of the Protocol, save by the achievement of an agreement fulfilling the same objectives. Therefore, despite statements in the Protocol that it is not intended to be permanent, and the clear intention of the parties that it should be replaced by alternative, permanent arrangements, in international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part, as set out therein”.
I understand that still to be the position and invite the noble and learned Lord to confirm it.
In his Statement, the Attorney-General focused particularly on other available remedies in the event that the European Union can be proved guilty of bad faith in not reaching an agreement. He says—this is important, and the noble and learned Lord repeated these words earlier—that the new documents are,
“not about a situation where, despite the parties properly fulfilling the duties of good faith and their best endeavours, they cannot reach an agreement on a future relationship”.
Again, therefore, I ask the noble and learned Lord to confirm that the Government accept that if, while acting in good faith, both parties cannot reach an agreement, the backstop would endure with no predetermined end date. I underline the phrase “can be proved to be” acting in bad faith, because that would have to be demonstrated—would it not? —and it would be for the United Kingdom, if it was asserting that position, to prove it. Can the noble and learned Lord confirm that? The burden of proof, as we lawyers say, would be on us.
I also question the likelihood that that could be proved. I have made this point before in the House. It would be a very strong thing—a virtually impossible thing—for this arbitral panel to find on proof that senior statesmen and politicians were acting in bad faith, rather than simply being unable to agree on what are important matters for them—for their constituents, as for ours. As a practising lawyer —at least when he is not fulfilling governmental responsibilities—would the noble and learned Lord agree that the prospects of proving that, when the EU negotiators are saying, “No, we did not regard these proposals as being in the interests of the EU”, are vanishingly small? If he were advising a client, he would tell him so now.
In his previous advice, the Attorney-General referred to the difficulties of proof and the egregious nature of the conduct that would be required to establish a breach of those obligations by the EU. These are very strong things to have to prove. I respectfully suggest that, in reaching a view on how much comfort these arrangements give, that must be borne very much in mind.
The Attorney-General says that he believes the risks of an indefinite stay are reduced. He does not—it seems to me—explain in his advice why they are reduced. I understood that, in short, he sees a greater political will to reach an agreement. That is a political judgement. It is of course open to him and to others to take the same or a different view on the political will. I cannot, however, agree that anything in any of the three documents changes the legal reality.
In paragraph 4 of his opinion, the Attorney-General referred to a,
“systematic refusal to take into consideration adverse proposals or interests”.
A systematic, contumacious or deliberate refusal even to consider proposals would, I suppose, be evidence of bad faith—but that is as far as it goes. A sincere disagreement about the terms, however, is not bad faith.
As for the third document, the unilateral statement, it is that and nothing more. It is what the United Kingdom says that it thinks, but that does not make it so. I do not, therefore, share the view that there is anything in these legal documents that shifts the legal risk.
I am loath to go back to the codpiece that I referred to yesterday. However, I said then that I did not really understand how that soubriquet had come into being. From what I have read since, it is apparently code for figleaf. I regret to say that despite the energy and good faith of both the Prime Minister and the Attorney-General—which I respect—these are no more than a figleaf, and Members of the other place are left to make their political judgments on the basis of the Prime Minister’s deal.
Lord Thomas of Gresford (LD)
My Lords, I do not propose to repeat the speech I made yesterday, in which I suggested that it was inappropriate for lawyers to determine an issue as important as whether the backstop had run its course. I am very pleased that in the conclusion to his Statement today, the Attorney-General emphasised that matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. As it is a political decision, it is really not right to ask lawyers to determine whether a state is acting in bad faith, as the noble and learned Lord said a moment ago. I commend the Attorney-General for sticking firmly to the opinion that he first gave and not being shifted, despite the enormous pressure I have no doubt he is under.
An aggrieved party under this instrument would have to persuade the arbitrators to prove—as the noble and learned Lord, Lord Goldsmith, said—that the other party had failed the best endeavours test with the objective of applying the backstop indefinitely. Further, he would have to prove that there had been a persistent failure or a systematic refusal to consider the other side’s proposals. Only if the arbitrators found in the aggrieved party’s favour would they be able to use temporary measures to suspend the backstop—and I emphasise the word “temporary”. The other party could cure the problem at will at any time by taking the necessary measures to comply with the ruling.
My first question to the Minister, therefore, is this: what does he envisage to be temporary measures? What does that mean? Clearly, it would not be a permanent unilateral withdrawal from the backstop. What would happen at the Northern Ireland border to the free passage of goods if temporary measures were taken? Would it be a smuggler’s free for all or a clamping down?
The Attorney-General originally advised that it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for a breach of good faith and best endeavours because of the difficulties of proof and the egregious nature of the conduct, which would have to be established. I remind your Lordships that according to the Oxford English Dictionary, the word “egregious”, which the Attorney-General in typical fashion rolled off his tongue, means “shocking”. Is it now then all about timetables? That is all that the instrument appears to lay down. I listened to the Attorney-General talking in the other place about time being of the essence. To every lawyer, that phrase means that if the timetable is not adhered to, the whole agreement is defunct. The United Kingdom negotiators have not shown themselves to be particularly conscious of time over the past two and a half years. Will a breach of the timetable on either side now amount to egregious, shocking conduct, sufficient to trigger the dispute settlement arbitration procedures?
Lord Keen of Elie
My Lords, I am obliged to noble Lords for their contributions. Referring to the observations of the noble and learned Lord, Lord Goldsmith, I will perhaps begin where he finished. If the noble and learned Lord was to revisit his study of early Italian Renaissance sculpture, he might be reminded that the fig leaf can cover some very important bits. Therefore, one must bear in mind that the use of analogies is not always entirely helpful.
In paragraph 19 of his opinion, the Attorney-General set out his view that the legal remains unchanged. But that was not the question that was being addressed. The issue that exercised people was one of an extreme nature, which one would, frankly, never anticipate arising where parties have entered into an international treaty in good faith and intend to discharge their obligations under that treaty in good faith. As I observed in a previous debate, if you simply do not trust the person with whom you are contracting or entering into a treaty, there is little point in doing so—you would not proceed in the belief that they would ever finally discharge their obligations. Here, however, we proceed in the confident belief that their obligations will be addressed and met.
It is therefore important that, in the context of the further agreement, the parties have fixed a date of December 2020 by which to use their best endeavours to arrive at an alternative to the backstop. It is in these circumstances that it is considered appropriate, as the Attorney-General observed in paragraph 7 of his opinion, to note that the provisions now represent materially new legal obligations and commitments which mean that unconscionable behaviour on the part of the EU, and failure to fulfil its obligation to seek suitable and alternative practical means of dealing with the backstop, would have to be properly addressed in the context of the arbitration provisions.
It is in that context that I come to address the questions posed by the noble and learned Lord, which touch upon each other. He began by asking how, if there is bad faith by the European Union, we would prove it. There are circumstances in which it would become apparent that the European Union was intent upon seeking to trap the United Kingdom in the backstop, notwithstanding the provision of alternative arrangements. But let us be clear: one does not anticipate or foresee that that would ever occur.
On that point, I note that the backstop has significant drawbacks for the European Union, just as it has significant drawbacks for the United Kingdom. If it were ever to emerge, the backstop would result in Great Britain enjoying the benefits of a customs union and paying nothing for that. The relevant payment in respect of the customs union would come from trade in Northern Ireland, not in Great Britain. Let us remember that there is very little in this that benefits the European Union, let alone the United Kingdom.
If we were, however, to find ourselves in a situation in which there was shocking or egregious conduct on the part of the European Union, the arbitration measure would be available. In finding that there was a breach, the arbitrators would be entitled to grant temporary measures. That would include a temporary suspension of the operation of the relevant backstop provisions with regard to the border.
The noble Lord, Lord Thomas, asked, quite rightly, what would happen at the border. One answer is that we would find ourselves in that situation only where the European Union had not been prepared to engage with coherent, sensible proposals put forward by the United Kingdom to deal with the border and ensure that it could remain entirely open. If a suspension was ordered by the arbitrators, it would then be open to the United Kingdom to implement those proposals unilaterally at the border in order to deal with the issue. If thereafter—in utterly extreme circumstances—the European Union was to persist in refusing to engage with the temporary suspension of the protocol, the arbitrators would eventually come to the conclusion, quite rightly, that the protocol was simply not required; that it was no longer “necessary” because the alternative arrangements during the suspension had clearly worked to the satisfaction of the European Union, which had done nothing in the meantime. Again, I stress that we are talking about the most extreme of circumstances. I do not contemplate that, politically, anyone will go there.
Civil Legal Aid (Amendment) (EU Exit) Regulations 2019
Lord Thomas of Gresford Excerpts(5 years, 10 months ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, as I indicated a moment ago, the Government published a technical notice on a number of areas which anticipated the possibility of our leaving the EU without any form of withdrawal agreement. On 13 September 2018, we published a technical notice which set out arrangements for civil legal aid cases, including arrangements in relation to the EU legal aid directive 2003, which I will refer to as the EU legal aid directive. The regulations we are discussing today will allow us to implement these arrangements and make other necessary amendments to the legal aid framework in England and Wales and Northern Ireland. These draft regulations will provide clarity for lawyers and citizens in the event of a no-deal outcome. As I indicated, that is not what we hope for, seek or wish to have as our destination. I emphasise that this will deal with the matter in England and Wales and in Northern Ireland. It is a matter of devolved competence in Scotland. The Scottish Government will address it as they see fit.
If we were to leave the European Union without a withdrawal agreement, the current reciprocal arrangements under the EU legal aid directive would be lost. The EU legal aid directive sets out rules relating to legal aid in EU member states, other than Denmark, to ensure adequate access to justice in cross-border disputes. Its application is limited to civil and commercial matters. It only applies to cross-border disputes which are, very broadly, disputes where an individual who is domiciled or habitually resident in an EU member state requires legal services in relation to proceedings or to enforcement of a decision or authentic instrument in another member state.
In a no-deal scenario, we are seeking to ensure that legal aid provision—for matters within the scope of the EU legal aid directive but not otherwise within the scope of legal aid—is not made to individuals domiciled or habitually resident in an EU member state on a unilateral basis where there is no longer reciprocity from the EU member state.
The instrument also makes technical amendments to ensure that the legal aid legislation in England and Wales and Northern Ireland operates effectively following EU exit and makes changes to procedural requirements for legal aid applications in England and Wales. It amends the civil legal aid framework in England, Wales and Northern Ireland to remove the legislation implementing the EU legal aid directive, which will no longer apply to the United Kingdom.
Individuals who are domiciled or habitually resident in the EU member state who require legal services in relation to proceedings in England and Wales or Northern Ireland or who wish to enforce a decision will be subject to the same scope, means and merits requirements as those who are domiciled or habitually resident in England and Wales or third countries—in other words, it brings everyone on to a level playing field. Legal aid provision for those domiciled or resident in the UK participating in proceedings in EU member states will fall to each member state’s particular legal aid framework—again, we cannot legislate for those states.
Repealing the legislation implementing the EU legal aid directive will ensure legal certainty and clarity regarding legal aid entitlement. In addition, we avoid a unilateral arrangement where those domiciled or habitually resident in EU member states are treated more favourably than those domiciled or habitually resident in the United Kingdom.
If I may, I shall explain the technical amendments made by the instrument. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Access to Justice Order 2003 require the provision of legal aid for exceptional cases not normally within the scope of legal aid where not to do so would be a breach of enforceable EU rights. LASPO also provides that the Lord Chancellor may make an order specifying circumstances where foreign legal advice may be provided when not to do so would, again, be a breach of enforceable EU rights.
The references in LASPO and the 2003 order will be amended to “retained enforceable EU rights”, because of course, pursuant to the 2018 Act, in our domestic law we will have retained enforceable EU rights, but we will not have EU rights. The terms will be defined with reference to the 2018 Act, as I said. That will enable the proper functioning of the exceptional case funding frameworks in England and Wales and, under LASPO, for the provision of foreign legal advice.
As to the procedural amendments, controlled work, which is referred to in the instrument, is a categorisation of legal aid work covering certain advice where the power to determine legal aid entitlement is generally delegated to legal aid providers—for example, initial advice and assistance. At present, it is not necessary for an individual seeking legal aid for controlled work in England and Wales to attend a legal provider’s premises in person where they are present or reside in the EU. Such an individual can authorise someone to attend on their behalf.
The draft instrument changes the exception to apply to those present or resident in the United Kingdom, and these changes will allow the benefit to continue to apply to those within the UK and ensure that those residing within the European Union will now be required to meet the same criteria as those residing in third countries are currently expected to meet when applying for controlled work and not present in the United Kingdom.
Licensed work is a categorisation of work that is generally granted where there is a need for representation in court, and the procedural criteria that currently apply for individuals applying for licensed work in England and Wales who reside outside the EU and are not present in England and Wales will now apply to those who reside outside the United Kingdom and are not present in England and Wales. In other words, it will level down the playing field as between those resident in the EU and those resident otherwise in a third-party country. As such, those residing within the EU will now have to meet the same criteria as those residing in third countries for the purposes of applying for licensed work in England and Wales.
With respect to the changes made to the domestic legislation implementing the EU legal aid directive and to the procedural requirements, the draft instrument makes provision for transitional arrangements for matters that are live under the repealed or amended legislation at the time of EU exit, so at least they will continue under the same rules as before.
As regards the impact, the department carried out an impact assessment, although one would not have been required in the context of the present instrument. I say that because in 2017, there were only 27 cross-border applications made between England and Wales and the central authorities in all other EU member states with regard to legal aid and of those, 20 of the applications were from EU member states for legal aid in England and Wales and seven went the other way. In Northern Ireland, it is estimated that there have been three applications over the past two years.
The instrument is necessary to correct deficiencies arising from the UK’s exit from the EU and in LASPO. As I said, the Scottish Government are taking required amendments to legal aid legislation in their jurisdiction separately, in order that that, too, can be addressed. I hope that with that explanation, noble Lords will understand the need to put this in place in the event of our proceeding without a withdrawal agreement, without a relevant transition period and without the scope for negotiation to deal with these matters. I commend the instrument to the House.
Lord Thomas of Gresford (LD)
My Lords, I must confess that it is not easy to grasp the scope of these provisions, but then I last filled in an application for civil legal aid when I was campaigning politically for Britain to enter the European Common Market about 55 years ago. In a paper published by the Ministry of Justice in August 2017, Providing a Cross-Border Civil Judicial Cooperation Framework, the Government declared that they would seek to agree new, close and comprehensive arrangements for civil judicial co-operation with the EU. The paper stated:
“We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now”.
In paragraph 7 of that paper, the benefits of the current framework are described as follows:
“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State”.
As with the previous statutory instrument, nothing appeared in the political declaration which refers to these “new, close and comprehensive” arrangements. Again, perhaps the Minister can advise us how far he has got in discussing the future.
An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive set minimum common rules relating to legal aid to improve access to justice in cross-border disputes and it applied to all such disputes involving civil and commercial matters but, in particular, it applied to family law: problems about children, the disposal of assets and so on. As the Minister said, its provisions were incorporated into English law by LASPO, and this SI’s purpose is to ensure that those domiciled or habitually resident in EU member states are not treated more favourably after we leave the EU than those who reside in England, Wales or Northern Ireland. EU residents who require legal services in relation to proceedings in our courts or who wish to enforce an overseas judgment will no longer have a right to legal aid for matters within the scope of the EU directive alone. The SI uses Henry VIII powers under Section 8 of the LASPO Act to revoke the domestic legislation implementing the EU directive in the UK, as the Minister fully explained.
So far as I can ascertain, this statutory instrument will prevent EU residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not to do so would be a breach of “retained enforceable EU rights”. Will the Minister give a concrete example of what “exceptional cases” means? He told us something of the statistics but how often have such applications for legal aid in exceptional cases been made by EU domiciled people or residents? Can he confirm that EU residents, even after Brexit, can apply for legal aid in the ordinary way for, say, a case involving children across borders in an English court, and that it would be granted if the ordinary merits and the means tests were satisfied? Does domicile or residency in the EU disqualify an applicant from legal aid in the normal way?
Lord Keen of Elie
My Lords, I am obliged for the contributions. The noble Lord, Lord Thomas, makes a good point about the advantages for all in securing mutual judicial recognition and enforcement. That is why, at an early stage, we sought to take forward those discussions with the profession on what was required. He is right to observe that the matter is not contained in the withdrawal agreement or the existing declaration but is an ambition. That may seem very little but, recognising that, we have taken forward what we can, which is to deal on a unilateral basis with the more recent Hague conventions that have been entered into by the EU on behalf of member states. We have engaged in discussion to become an individual state signatory to those conventions. My recollection is uncertain but I think the 2005 and 2007 conventions were involved. We have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that. Again, to become a party to Lugano, we require the consent of the EU because it is also party to it. Those steps are being taken forward and we are conscious of their importance. I underline that.
On legal aid provision, there is no question of a disqualification being applied on the basis of residence in the EU. Let me be clear about that. The point is that the scope of the EU legal aid directive is wider than the scope of the legal aid provision under LASPO. This instrument is to bring that into line with LASPO and have a situation whereby, in certain forms of civil and commercial dispute, the directive would require consideration of a legal aid application that would not otherwise fall under the LASPO provisions.
Lord Keen of Elie
I was coming to that and would point out that the exceptional case provision is there for all cases that fall under LASPO. That will apply equally to those resident in the EU, as it would apply to those resident in the United Kingdom. Again, I point out that there is no disqualification or discrimination in respect of that matter; it is a case of ensuring that there is a level playing field whereby the scope of legal aid availability and the qualification for that aid are the same. It may not assist your Lordships much but there are provisions in the EU directive for taking account of differences in standard of living, for example, when applying financial criteria for legal aid under the directive. It is that sort of provision that we have to deal with to ensure that there is a level playing field. I emphasise that this instrument does not seek to disqualify anyone who would otherwise qualify for legal aid under LASPO, whether under the exceptional provisions or standard provisions of that scheme. I hope I can reassure your Lordships on that point.
I have rather forgotten the other points that the noble Lord, Lord Beecham, so eloquently made, but if I sit down without answering, will he remind me afterwards and I will write to him? As I say, I want to underline the purpose of the instrument, which is to produce a level playing field, not a disqualification.