Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Lord Thomas of Gresford Excerpts

Tuesday 15th January 2019 Lords Chamber

[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?

--- Later in debate ---

[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 Thomas of Gresford]

I was asking what the exceptional cases are.

[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.

Brexit: Legal Position of Withdrawal Agreement

Lord Thomas of Gresford Excerpts

Monday 3rd December 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am of course grateful to the Minister for repeating that Statement and for advance sight of it and the position paper published today. However, all Members of this House and, even more importantly, all Members of the other place are at a major disadvantage when asking questions because they have not read the legal advice upon which the Statement is based. It is totally unacceptable that we are in this position when aspects of the Attorney-General’s advice have been selectively leaked to the press over the weekend. Perhaps the noble and learned Lord can confirm that in the Attorney-General’s letter to Cabinet Ministers last month, as has been reported, he declared in respect of the backstop arrangement:

“The protocol would endure indefinitely”,


if trade talks broke down.

On 13 November in the other place, my colleagues the shadow Brexit Secretary and the shadow Solicitor-General were both crystal clear that what was sought was the final and full advice provided by the Attorney-General to Cabinet on any completed withdrawal agreement, made available to all Members of Parliament in good time for the vote on the deal. Offers short of that made by the Government, including the Attorney-General’s Statement today, were roundly rejected and the House of Commons passed the Motion unanimously. The Government could have voted against it and did not.

The reality must be that the Government do not want MPs to see the advice for fear of the political consequences. There is no point in trying to hide behind the law officers’ convention; the Ministerial Code and Erskine May are very clear that Ministers have a discretion, as part of that convention, to make advice available in exceptional circumstances. Surely few circumstances could be more exceptional than these. The economic, political and constitutional integrity of our country is at stake and the House of Commons is tasked with authorising the deal.

Paragraph 82 of today’s position paper confirms that there is no unilateral exit mechanism from the backstop for the United Kingdom—I stress, no unilateral exit mechanism. Perhaps the Minister could point me to a precedent for such a locked door with only one party as keyholder, which would not be us. Can he point to such a precedent in another treaty of recent times, or at all? The Government’s argument that the backstop will be only temporary is a political one, and politics changes. It is not the same as a firm, legal position. But articles 1.4 and 2.1 of the backstop protocol are clear that its provisions,

“shall apply unless … they are superseded, in whole or in part, by a subsequent agreement”.

Put simply, this means that parts of the backstop could become permanent even in the event that a trade deal were agreed. Can the Minister tell us of his view as to the parts of the backstop arrangement in this protocol that he considers most likely to become permanent?

There is then the impact on the Good Friday agreement. Page 305 of the withdrawal agreement refers to the need for this protocol to be implemented so as to,

“maintain the necessary conditions for continued North-South cooperation, including for possible new arrangements in accordance with the 1998 Agreement”.

Can the Minister confirm what his view is about, first, new arrangements that he believes would be in accordance with the 1998 agreement and, secondly, which new arrangements he believes would not be in accordance with it?

It is of course for the other place to rule as to whether there has been an arguable case for contempt in what we on these Benches believe to be a failure to comply with the Commons Motion of 13 November. But for the sake of our economy, our jobs and our futures, all possible information should be made available to those asked to vote on this deal. The Government should do the right thing and make the advice available. With so much at stake for all our people and with eight days now before the vote on the deal, both Houses and the country deserve better from this Government.

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Statement and for giving me advance notice of what it contained. On 14 November, the Government published an explainer document in conjunction with the text of the draft withdrawal agreement. Paragraph 158 states that the agreement contains,

“assurances that we cannot be kept permanently in the backstop”.

That is not the view of the Attorney-General as set out in this Statement. He says:

“There is … no unilateral right for either party to terminate”,


the agreement. The Northern Ireland protocol places the whole of the United Kingdom in a single customs territory with the EU. As the Attorney-General’s Statement says, that will continue to apply in international law unless and until it is superseded by a permanent agreement. Northern Ireland alone must additionally follow many of the EU’s single market rules and will consequentially, whatever the DUP may say, have a different status from Great Britain.

The legal statement that has been produced today rightly focuses in particular on Article 20 of the protocol. It is not a break clause, which might in defined circumstances permit the United Kingdom to break the arrangements and walk away from the single customs territory; it is a review clause whereby one party, if it thinks fit, may seek agreement from the other that the protocol is no longer necessary essentially to protect the 1998 agreement in all its dimensions. If there is agreement, the single customs territory comes to an end but, in the absence of agreement, the dispute is to be resolved by an arbitration panel whose decision is binding on both parties. If a question of the interpretation of Union law arises, the panel cannot determine it; it must seek a definitive ruling from the Court of Justice of the European Union.

Paragraph 11 of the annexe to the legal position document suggests that the arbitration panel would be considering, for instance, whether the parties were acting in good faith or lawfully. I understand that the Attorney-General has expanded on this in another place today. I regard that as a distraction tactic. Does the Minister not agree that the real question the arbitration panel would decide is not whether the parties were acting in good faith but whether, in its opinion, maintaining the single customs territory was still necessary for the purposes of the 1998 agreement? Is not the whole purpose of the protocol to maintain frictionless trade between the whole of the United Kingdom and the EU in order to avoid a hard border in Ireland? Is it sensible to leave such a highly political and sensitive question for an arbitration panel to determine, even though it will get its law from the CJEU? If that arbitration panel says that it is still necessary to maintain the single customs territory, we remain in it. We remain in the backstop. We remain in the single customs territory. There will be no trade deals being brought into effect. Does the Minister agree that that is the legal position?

[Lord Keen of Elie]

My Lords, I am obliged to the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Thomas of Gresford, for their observations. I shall begin by saying clearly that I am not going to comment upon leaks to the media that may or may not have been made and may or may not be accurate, and I am not going to comment upon any correspondence that the Attorney-General may or may not have had with members of the Cabinet. Like the noble Baroness, Lady Chakrabarti, I observe that the issue of contempt is one for the Speaker and Members of the other place, and I make no further observation on that point.

The steps taken by the Attorney-General and the Government in respect of this matter are consistent with and correspond to the undertakings that were given in the other place by my right honourable friend the Chancellor of the Duchy of Lancaster.

A great deal has been said about the Northern Ireland protocol and the backstop. I begin by observing that it is the intention of the Government that the backstop should never be required and that during the implementation period we will engage in negotiation for an agreement that will mean that the backstop itself is not required. But of course there remains the possibility that it will be required; albeit it is one of two alternatives, because the alternative is to extend the transition or implementation period.

Let us look at the backstop itself. The noble Lord is quite right to say that, on the face of it, there is no unilateral right to withdraw from the backstop. That is quite clear in the terms of the protocol to the withdrawal agreement. But that is not the end of the story by any means. There have been various suggestions that somehow the United Kingdom, including Northern Ireland, will be locked into the backstop indefinitely, for ever. The noble Baroness, Lady Chakrabarti, talked about the single keyholder being the European Union, which at its whim will simply decide to leave the door locked and walk away with us in the backstop for ever and a day. That is simply unsound as an analysis of the legal position.

Under the terms of the Northern Ireland protocol, and, in particular, Article 2, there is an express obligation on the parties to use their best endeavours to reach an agreement that will not require the maintenance of the backstop. The term “best endeavours” is well worn in both domestic and international law and imposes a strong obligation upon the parties to conduct themselves in such a way that they can realistically and reasonably achieve an alternative settlement. If that obligation is not obtempered or met by one or other of the parties simply because it wants to leave the backstop in place indefinitely, there is a dispute resolution mechanism. It is not just about acting in good faith or about whether or not the backstop is necessary; it is whether or not the backstop continues to be necessary because one or other party has not used its best endeavours to adopt or agree an alternative arrangement. That would be subject to arbitration in terms of the withdrawal agreement.

Pursuant to Article 178 of the withdrawal agreement, if there was a failure on the part of a party to obtemper the ruling of the arbitration panel, which can be arrived at by a majority, there would be the right on a temporary basis to suspend implementation of a part of the agreement that was being held in place simply because of a breach of that obligation of good faith. But it goes further than that. In the event that there was a persistent failure on the part of, for example, the EU to obtemper its obligation of best endeavours and to adopt what was plainly a suitable alternative arrangement for the Northern Ireland protocol, one would have regard to Article 60 of the Vienna Convention on the Law of Treaties, which provides that a material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. You then look at the definition of a material breach.

So this is not a case of being locked in with the EU holding the key. It has clear, express and unambiguous legal obligations to obtemper in the context of the Northern Ireland protocol, and if it fails to do so then there are remedies available. I reiterate that it is not a case of one or other party having the unilateral right simply to walk away from the protocol. That would not be appropriate in any form of international agreement. There is a mechanism whereby the agreement cannot be abused by either party and whereby if it is abused, there can be a resolution involving termination or suspension of a particular provision.

Candidly, I do not believe that two bodies such as the United Kingdom and the European Union are going to find themselves in a situation in which, over a period of time, one or other is not going to act in good faith in the field of its international obligations and is not going to discharge its obligations to use its best endeavours to arrive at an alternative agreement.

I hope that that goes some way to meeting the points raised by the noble Baroness, Lady Chakrabarti, and the noble Lord, but I emphasise that, ultimately, I am seeking to address the legal issues that arise in the context of the withdrawal agreement and, like the Attorney-General, I am perfectly prepared to answer any question from this House on the law—albeit they may be better informed by other and better lawyers inside and outside this House. I have no difficulty in responding, in so far as I can, to legal issues raised with regard to the withdrawal agreement. The Attorney-General took exactly the same position in the House of Commons. He recognised his duty not only in government but to the House to give such legal assistance as he could to the House to resolve any issues that may arise in this context. That is where we stand.

I just add this. After 45 years, clearly there are issues to be worked out between the parties, and the withdrawal agreement will allow for the necessary time and legal means for that process to unfold in an orderly, peaceful and sensible way. I reiterate that I am at the disposal of the House to answer questions of law, although they might be better answered by other Members of the House. Thank you.

Private Burial Grounds

Lord Thomas of Gresford Excerpts

Monday 18th June 2018 Lords Chamber

[Lord Keen of Elie]

I deeply regret that the noble Lord’s interest is posthumous. I am not in a position to answer the specific point raised by the noble Lord, but I will write to him and place a copy of the letter in the Library.

[Lord Thomas of Gresford (LD)]

My Lords, what is the policy of the Government in issuing licences under these Victorian burial Acts which permit the digging up of bodies in order to hold new burials? For how long must a person be buried before his remains are exhumed? How many licences have been issued, and have there been any prosecutions?

[Lord Keen of Elie]

My Lords, as regards private burial grounds, the removal of a body from a burial ground would be an offence pursuant to Section 25(1) of the Burial Act 1857, unless there was a statutory consent for such removal.

Scotland: European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Thursday 14th June 2018 Lords Chamber

[Lord Duncan of Springbank]

I thank my noble friend Lord Forsyth. It is fair to say that he can to a certain extent legitimately say, “I told you so”, and he forewarned that this would be an outcome. None the less, the Government did all they could, trying in every possible way to secure agreement with the Scottish and Welsh Governments.

The walkout yesterday was—daft. That is the word. It was a situation in which four SNP MPs had questions to the Prime Minister and they decided that they would walk out and not ask them. One of the poor souls had been trying since 2015 to put a question to the Prime Minister, and he walked out. It may take another three years or he may never put another question to the Prime Minister, and if you are to try to hold a Government to account, that is your opportunity to do it. At the selfsame time, it looks as if the Speaker of the other place was ready to have a debate on the very issues which the Scottish National Party was so aggrieved by, but of course that did not happen, because the members of the SNP were hotfooting it out to the television cameras to say how disgraceful it was that they were in that situation. It is regrettable and it was unhelpful to their own cause. I believe that we should have as much discussion as is required on the issues to ensure that nobody feels that they are being silenced, quietened or ignored. However, there are conventions in the other place which would have allowed for that discussion to take place, but they were squandered by individuals who perhaps did not believe that those opportunities were adequate for them and their purposes.

I accept the points raised by my noble friend about the powers themselves. It is difficult to reconcile the views of the Scottish National Party; it believes that Brussels can retain all the powers, but even if there is the slightest hint that the United Kingdom could in any way have any touch of these powers, that is somehow bonkers. The sanity of that is questionable—but perhaps that is not for me to question.

[Lord Thomas of Gresford (LD)]

May I say that it is unhelpful for the Minister to use language such as “bonkers”, “daft” and so on, as was the tone of the speech of the noble Lord, Lord Forsyth? There is a problem to be addressed. The use of the word “veto” is also unhelpful. That suggests that the ultimate conclusion should be that one of the four entities that make up the United Kingdom should be able to block the other three. Can the Minister say whether any thought has been given to qualified majority voting on issues in setting up the framework? I would have thought that the people of Scotland would, even if they did not welcome it, be prepared to consider a proposal that had the support of England, Wales and Northern Ireland. For example, if it were 3:1, perhaps the Scottish people would feel that their views would be overruled by a majority. However, the problem at the base of it all is that Scotland and Wales, even though they have agreed to the settlement, and Northern Ireland, fear that they will be overruled by English interests.

I know that Wales was happy to be within the EU frameworks because they applied across the whole of Europe to all the EU countries. Therefore there was a certain parity, without the domination of English interests over Welsh or Scottish interests at that time. But when you bring it all back to the United Kingdom and consider that the United Kingdom Parliament is also the English Parliament, there is concern and fear to be addressed.

I suggest to the Minister that instead of using emotive language, even though he is supported by members of his own party, he should approach the issue much more calmly and seek a mechanism that would be acceptable. If, ultimately, other mechanisms are simply dismissed by the Scottish Government, perhaps the Sewel convention can come to the Government’s aid and they can pass this legislation without the consent of the Scottish Parliament. But they are building up trouble, not merely by going ahead with this Bill without the consent of the Scottish Parliament but by using the language like “veto”, “daft” and “silly” that is being used on the Conservative Benches. I urge the Minister to be more temperate in his use of language.

[Lord Duncan of Springbank]

I thank the noble Lord for his words of advice, but Scots are renowned for telling it like it is, and I assure him that I moderated my language a great deal when I chose those words. What I saw yesterday was scandalous, and I think anyone who saw it would agree. It was a dereliction of a democratic role. That level of theatrics may play its part—I do not doubt that—but there are other things that should be done in the other place.

On qualified majority voting, in the United Kingdom we have a degree of asymmetry. Attempts were made by the other party to address this through regional assemblies within England, but that was simply not supported by the public will. It is not easy to accept in such a small island archipelago such as we are, where one nation is so dominant in terms of population, that we should somehow simply divide the land into four parts and pretend that each is equal and should be considered as such. That would not be easily done. I do not think that the Government today are ruling anything out, but we have to be realistic—something else the Scots are renowned for.

Northern Ireland: Supreme Court Ruling

Lord Thomas of Gresford Excerpts

Thursday 7th June 2018 Lords Chamber

[Lord Duncan of Springbank]

The can cannot be kicked down the road for ever. A solution needs to be found. We desperately and dearly hope that that solution is found by a new Executive recognising their responsibilities to deliver for the women and girls of Northern Ireland.

[Lord Thomas of Gresford (LD)]

My Lords, the judgment makes it clear that—

[Viscount Younger of Leckie (Con)]

My Lords, I fear that the time for Back-Bench questions is up.

Belhaj and Boudchar: Litigation Update

Lord Thomas of Gresford Excerpts

Thursday 10th May 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement and am especially grateful to Jeremy Wright, the Attorney-General, for advance sight of it yesterday and, in particular, for his humane handling of this matter.

Mrs Boudchar has been in the Public Gallery of the other place today, and I am sure that the whole of both Houses of Parliament will sympathise with her and Mr Belhaj for having suffered such appalling treatment at the hands of others. What happened to them both is deeply disturbing, not least as Mrs Boudchar was pregnant at the time. I only hope that the settlement of the legal case allows some closure to a terrible set of events in their lives.

The Prime Minister has written to Mr Belhaj and Mrs Boudchar, who is in the Palace today, to apologise for this terrible treatment. She is entirely right to have done so, and to accept—unequivocally and unreservedly—the failings on the part of the UK Government at that time.

I of course agree with the Minister and with the Attorney-General that our security and intelligence services carry out vital work in helping to keep us all safe. But the rule of law must always be respected and must always be the guide of the actions of government. Our security and intelligence services must be properly overseen. When things do go wrong, it is right to acknowledge that in very clear terms, to do what can be done to make recompense, and to learn lessons for the future.

The Attorney-General rightly raised in his Statement problems regarding information sharing, more actions being required to reduce the risk of mistreatment and missed opportunities to alleviate human suffering. We must do all we can to stop this ever happening again.

The relationship between our intelligence and security services and government is now subject to a different framework. That is a welcome step in the right direction. The statutory right of the Intelligence and Security Committee, independent of government, to review past intelligence operations and its direct access to agency papers are important. That Ministers must be consulted whenever UK personnel are involved in a planned operation in which they believe a detainee is at serious risk of mistreatment by another state is absolutely crucial. I appreciate that the Minister is, understandably, limited in what he can say openly today, but I would ask for an assurance that such ministerial consultation will be detailed, considered and informed by as much information as can reasonably be made available to Ministers at the time.

In addition, might the Minister assure your Lordships’ House that we will always be vigilant in ensuring that the framework within which our intelligence and security services operate is robust and is always shaped by our core values: the rule of law, liberty and human rights? After all, it is only behaving to those standards ourselves that allows us to stand up for those values around the world.

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Attorney-General’s Statement.

On 21 February 2008, this House was concerned with the use of UK facilities and UK airspace by the United States for the purposes of extraordinary rendition. In answer to a Written Question from my right honourable friend Menzies Campbell, now my noble friend Lord Campbell of Pittenweem, assurances had been given by Mr Jack Straw in 2005, and later assurances were given by Mr Blair, the Prime Minister, in 2007, that these events had never occurred—that there had been no extraordinary rendition. A Statement in February 2008 was made by the noble Lord, Lord Malloch-Brown, in this House to the effect that this was incorrect and that extraordinary rendition had taken place through the British territory of Diego Garcia. Perhaps I may crave the House’s indulgence for quoting myself. I said on that occasion:

“We look for a public inquiry, as we have called for several times, which will investigate what extraordinary renditions have taken place not just to European countries but to places where we know that torture takes place—places such as Syria, Egypt, Morocco and Jordan, where it is thought that there are secret holes where United States detainees are held. We cannot be satisfied by assurances given by the Government today on this matter”.—[Official Report, 21/02/08; col. 351.]


Nothing was said in 2008 about the events of 2004—the abduction, detention and rendition to Libya of Mr Belhaj and Mrs Boudchar, who were opponents of the Gaddafi regime and could expect torture and imprisonment.

Today, the Prime Minister’s apology, as we have heard, contains the following:

“The UK Government’s actions contributed to your detention, rendition and suffering”.


We are entitled to know in what specific way. Mr Belhaj’s claim was that MI6 provided information to the CIA which led to his capture in Kuala Lumpur in 2004 and rendition via Bangkok to a Libyan jail. He further claimed that he was interrogated by British intelligence officers during his six years’ imprisonment and during the period of torture that he endured. All this was denied at the time. The Prime Minister says in her letter:

“The UK Government believes your accounts”.


Therefore, I take it that what Mr Belhaj said in his statement of claim is admitted, despite the fact that liability in the case is not admitted.

Another phrase used by the Prime Minister was that she was,

“profoundly sorry for the ordeal”,

of Mr Belhaj and Mrs Boudchar. If that is so, why did this Government try to quash these proceedings and argue a defence of state immunity and “foreign act of state” immunity all the way up to the Supreme Court as recently as January of last year? Do the Government now recognise that these defences must be subject to exceptions where there are violations of fundamental norms of international law and basic human rights, such as the prohibition of torture, which has been recognised in this country since Felton’s case in 1628?

A further point is that the costs of such a series of applications and appeals, which were unsuccessful, have no doubt fallen upon the public purse. What were those costs?

[Lord Keen of Elie]

I thank the noble Baroness, Lady Chakrabarti, for her observations and the noble Lord, Lord Thomas. As the Statement made clear, more could have been done to prevent the suffering of Mr Belhaj and Mrs Boudchar when the Government shared information with their international partners. Although the Government believed assurances that they sought in good faith about the treatment, with the benefit of hindsight they feel that they could have done more. Furthermore, after the detention of Mr Belhaj and Mrs Boudchar in Libya, it is now clear that the United Kingdom Government missed opportunities to alleviate their plight.

As regards future ministerial scrutiny, of course that will be all that is required to ensure that these events do not repeat themselves. Our vigilance will be clear and robust, and will reflect our core values, as outlined by the noble Baroness.

With regard to the queries from the noble Lord, Lord Thomas of Gresford, I will not make any comment on operational matters, but it is not the case that the Government tried to quash any decision. The case which was raised and which has now been settled without admission of liability raised complex issues of law, and we of course respect the decision of the United Kingdom Supreme Court handed down in January 2017. The costs were incurred by the Government Legal Department and were approximately £3 million.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

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

[Lord Lang of Monkton (Con)]

My Lords—

[Lord Thomas of Gresford (LD)]

My Lords—

[Lord Lang of Monkton]

I say with great respect to the noble Lord that I think it is the turn of this side of the House.

Like other noble Lords, I welcome the progress that has been made in clarifying the clause as it originally appeared and I congratulate my noble friend and the Bill team on further refining the intentions in a way that I hope will make it much clearer at the end of the day. Their patience and diligence has caused them to go many extra miles and they should be warmly thanked for that. But we have now reached a conclusion that all people of reason and good will will surely welcome. I congratulate the Welsh Assembly Administration on their welcome for these changes. Sadly, the Scottish Administration have not done so. Like the noble and learned Lord, Lord Wallace, I regard that as regrettable. Like the noble and learned Lord, Lord Hope, I truly wish that there were some Scottish nationalist Peers in this House to argue their case, answer our comments and explain their purpose and motives. Just because they are not here, however, that does not absolve us from the obligation to question and challenge their policies and make clear what we think of their motives and the way that they are trying to drive affairs.

Having expressed my views on this matter fairly clearly in Committee, and given the hour and the bulk of amendments that we still have to get through, I propose to cut what I intended to say in half and move on to other matters. So I shall spare the House half of what I originally intended to say.

I welcome the introduction of the new sunset clauses. In Committee, I suggested that the Scottish First Minister was capable of creating a grievance out of a ray of sunshine. On looking at her letter to the Lord Speaker, I see that she does not take too kindly to sunset either. She thinks that the sunset clauses are,

“not something I can recommend to the Scottish Parliament for approval”.

I think this a very good idea and an important improvement. The Constitution Committee has long argued for it, as have many others. I will be interested to see what my noble and learned friend the Minister says in his reply to the proposal of the noble and learned Lord, Lord Wallace, to shorten the extensive seven-year period to five years, which must have some arguments in its favour.

I particularly want to ask the Minister about the frameworks. I hope he can clarify the position on something that troubles me, here and elsewhere in the Bill: the possible accumulation of new provisions in legislation, arising from the Bill, that may not all evaporate when the sun eventually sets. For example, as I understand it, all frameworks have to be agreed, and legislation arising from them implemented, before exit day—or, at any rate, secured in some specific way if things stray into the transition period. Otherwise, they could accidentally be allowed to be devolved, to the great detriment of the United Kingdom and as a major change to the devolution settlement. Surely that creates a major time pressure in not just this Bill but those that will flow from it over the next few months. The 40-day cooling-off period adds to the pressure, although I welcome it as a measure. Given the propensity of the devolved Administrations to string matters out for as long as they can, can the Minister assure the House that provisions exist to ensure that all the framework-related legislation will meet the timing deadlines?

Secondly, the Bill would include legal commitments to consult the devolved Administrations on certain areas in future. As a matter of constitutional propriety, that should—and would—happen anyway; it already has, extensively, but now it will be enshrined in law. Given the propensity in some quarters to consider that to consult is to concede, and that consent is equal to granting a veto, can the Minister confirm that there is no question of consultation carrying such implications with it, that this dangerous route is closed off, that all the detritus that will be left after the Bill is implemented will have served its purpose because the measure is essentially transitional, and that such things will eventually fall by the wayside? With those queries and comments, I welcome the changes that have been made. I am confident that they are an improvement and I hope they will speed the Bill towards completion.

[Lord Thomas of Gresford]

My Lords, I also welcome the fact that the Government have moved so far from their original stance and that the Welsh Government have been able to agree to their proposals. It is a tribute to the force of the argument that united all parties in the Welsh Assembly—as pointed out by the noble Lord, Lord Wigley—against the Government’s initial proposals, as well as to the negotiating skills of Mark Drakeford and his team.

As said by the noble and learned Lord, Lord Keen of Elie, the purpose of these provisions is to freeze the exercise of powers transferred from Brussels to Cardiff in 24 specific areas of policy, pending the negotiation and agreement of UK frameworks in those areas. There is a gap: what happens to the powers that are repatriated from Brussels between exit day and the making of these regulations? Where do they lie and are they exercisable by anybody? The noble and learned Lord asked for further guidance. I have looked at the amendment; it is not so much insensitive as tortuous. The machinery by which the restriction is implemented on the Welsh Assembly is contained in proposed new subsection (3), which introduces via proposed new subsection (3A) a new Section—109A—into the Government of Wales Act 2006. There are a number of steps to be taken to implement a restriction relating to retained EU law. It is important that both the principle and the mechanism be clear and understandable to the public and lawyers. I must confess, I found it difficult to understand; I am grateful for the help of the Minister, Chloe Smith MP, and her excellent legal adviser in guiding me through these provisions.

Step one of the process is discussions between the Government and the devolved Administrations. This is not in the new section at all. It is set out in paragraph 7a of the memorandum of understanding:

“Building on the ‘Deep Dive’ process, which has been a collaborative effort between the governments, discussions will take place between the governments to seek to agree the scope and content of regulations. This process will continue to report into JMC(EN)”—


that is, EU negotiations. Discussions will take place; that is the first step. The forum for those discussions and the means by which binding decisions are made is a very important topic, raised by Amendment 92A, tabled by the noble Lord, Lord Wigley. I reserve further comments until then.

--- Later in debate ---

[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—

[Lord Thomas of Gresford]

The Minister was about to tell us about the gap my noble friend introduced between exit day and the making of the regulations.

[Lord Keen of Elie]

I am obliged to the noble Lord. There may be a situation in which powers go to the devolved Administrations and yet they do not deal with those powers, and it may be considered that upon further consideration there are additional areas where frameworks ought to be based on a UK-wide determination and where regulations would be made. But as the noble Lord himself observed, that regulation-making process would involve us consulting the Scottish and Welsh Governments—and, I hope at that stage, a Northern Ireland Executive—so that we could secure their consent. Only if there was a failure to secure the consent would the matter go forward to this Parliament, with two clear safeguards. First, the Minister of the Crown would have to explain to Parliament why he was seeking to make those regulations without the consent of a devolved Administration, and secondly, there would be an opportunity for the devolved Administration to make their representations to this Parliament as to why they felt it appropriate to withhold their consent. But, as I said, there may be a period after exit when it occurs to parties that it might be appropriate to proceed in that way.

Turning to the question of where we are with the Scottish Government, I begin by saying that the door—

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, in my own profession when you make a mistake you stop, reflect and rectify. Fortunately, we have seen that happen with Clause 11 and I take this opportunity, having not spoken previously, to commend all players who have renegotiated the amendments that we have agreed to this evening. I pay particular tribute not only to Mark Drakeford but to Carwyn Jones, who has had a role in all this—much more quietly than Mark Drakeford, who has fronted it—and all the civil servants who have supported this process. I have certainly appreciated the interventions from the noble Lord, Lord Bourne of Aberystwyth, who has kept me up to date with some of the progress.

This amendment, as proposed by the noble Lord, Lord Wigley, takes us to the next stage because when you are in a completely new situation, you have to do the best you can. You have to learn from past mistakes and find a new way forward. We are facing a completely new, evolving situation. There really need to be new working arrangements between the devolved nations and Westminster, and they have to be on a much more level playing field than before. I can see that the way this amendment has been drafted is not for the Bill and I would not expect the Government to accept it. However, I hope that the principle of having a different framework whereby these discussions happen will be accepted and taken forwards. I also hope that, however the terms of reference for this group are written, they will be open for discussion and come out of discussion with all the nations involved, rather than being centrally generated and offered as something to be signed up to. There really is a need for ownership going forwards.

On rectifying what has happened as we enter the new partnership, which the noble Lord, Lord Wigley, spoke about previously, I thought it was telling that in the previous debate the noble and learned Lord, Lord Morris of Aberavon, mentioned money. One way the Government might like to help re-establish some of the working practices is to build on the debate we had the other day about the Swansea barrage, consider asking the National Assembly for Wales what it would like to do, and help it achieve whatever it feels is best for jobs and the future energy supply of Wales.

[Lord Thomas of Gresford]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Finlay, and I agree with everything that she said. In the previous debate, I quoted paragraph 7.a. of the Memorandum on the European Union (Withdrawal) Bill and the Establishment of Common Frameworks. I will repeat it because it is worth repeating. It says:

“Building on the ‘Deep Dive’ process, which has been a collaborative effort between the governments, discussions will take place between the governments to seek to agree the scope and content of regulations. This process will continue to report”,


into the JMC on EU Negotiations. This amendment, tabled by the noble Lord, Lord Wigley, allows us to discuss the very important issue of how those discussions are to take place, what decisions are to be taken and how they are to be taken over the formation of the UK framework agreements.

Non-Disclosure Agreements

Lord Thomas of Gresford Excerpts

Tuesday 1st May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, the Employment Rights Act 1996 makes two things clear. First, if an employee does not get independent legal advice regarding such an agreement it will be void. Secondly, it ensures that where a non-disclosure agreement has been entered into it does not affect the right of the employee to make a protected disclosure—that is, a disclosure that pertains to various forms of wrongdoing and is made to a protected party.

[Lord Thomas of Gresford (LD)]

But protected disclosure does not cover all forms of sexual harassment or harassment in the workplace. Is there not a duty on lawyers to make it clear to their clients, whether employers or employees, that non-disclosure clauses in contracts of employment or settlement agreements cannot be used to conceal criminal conduct or to prevent the reporting of conduct that amounts to sexual harassment, particularly where it involves an abuse of power by a senior over a junior or where it is repeated and habitual?

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

With respect, I am saddened to hear the noble Lord get on to this grievance and feeling against the Scots nationalists. They are elected by the people of Scotland. He has to accept the voice of the people there. They represent the interests of the people of Scotland and if they act against those interests they will be kicked out. Maybe he wants that—maybe we all want that—but the tone that is being struck by him just at this moment, after a very constructive speech, unhappily does not help to resolve the outstanding issues. I join the noble Lord, Lord Hain, in saying that that is not the feeling that one should have, certainly with regard to the attitude taken by the Welsh Government. I believe that they represent the feelings in Wales that there is a suggestion that the United Kingdom Government may enter into a position that we would regard as unfortunate. It is unfortunate that this anti-Scots nationalist—they are not represented in this House at all; maybe that is their fault that they choose to do that—language should be used.

--- Later in debate ---

[Lord Forsyth of Drumlean]

I do not know the detail. I do know that a number of the joint ministerial meetings were cancelled, but not by the Secretary of State or the UK Government. I am entirely prepared to accept that the process could be improved. Certainly, when I was a Secretary of State and we had differences of view on policy in respect of Scotland compared with other parts of the United Kingdom, we had a joint ministerial committee, sorted out the issues and reached agreement, not always to our advantage but sometimes to our advantage and to the disadvantage of others. I had an amendment down, which I have withdrawn in the interests of making progress, which suggested that there should be some kind of statutory arrangement for consultation. I can see that. But I am seeking to argue against the noble Lord, who wishes to elide consult with consent.

[Lord Thomas of Gresford]

My Lords—

[Lord Forsyth of Drumlean]

May I just answer the noble Lord before I deal with the noble Lord, Lord Thomas?

I understand that. If I were a Welsh nationalist, or someone who did not accept the result of the referendum, I can see why I might table amendments of this kind and cause maximum disruption to the Government’s programme.

[Lord Thomas of Gresford]

The noble Lord has just outlined a dispute resolution system of which he was part. He said that the council would get together and it would thrash out an agreement. Is that not precisely what the noble and learned Lord, Lord Mackay, is suggesting?

[Lord Forsyth of Drumlean]

If the noble Lord had listened to the first part of my speech, I explained who would speak for England, and that this is a matter for the United Kingdom. The difference, of course, when I was Secretary of State was that there was one Government and one party in power. I do not speak for Wales but the difficulty we have in Scotland is that the party in power is determined to destroy and break up the United Kingdom. That is its agenda. As my noble friend Lord Lang said, every single issue is turned into a constitutional crisis and is a source of dispute.

If I may, I will turn to the substance of the government amendment. I started by saying that I have never seen a Government work so hard to try to achieve consensus and agreement. They have tabled an amendment which turns on its head the original proposals in the Bill to reflect the architecture of the Scotland Act. They should be given great credit for that. I welcome the conversion of the noble Lord, Lord Foulkes, who is not in his place; I do not know which road to Damascus he has been on, but it is good to see his conversion and that he now sees that what the Government are trying to do is sensible. The noble and learned Lord, Lord Wallace, also responded positively to this, and made some quite interesting suggestions as to how the amendment might be improved. It is to the Government’s credit that they have brought forward this amendment—and not just brought it forward; as everyone around this House knows, the Secretary of State, David Lidington, has gone to great lengths to meet people, despite all the other things on his agenda, to take this forward. Nobody can say that the Government have not tried to move forward in the interests of getting an agreement.

My noble and learned friend Lord Mackay says that he has had a generous conversation with the Scottish nationalist Minister, and that he thinks he will take a positive and constructive view. Anyone who had that attitude of mind would see that this was a huge leap forward and would embrace it. The Government have not only tabled an amendment which meets any reasonable person’s aspirations but have even said, “We’re not actually going to move the amendment; we going to withdraw it in order for people to have a further opportunity to consult on it”. I cannot think of another occasion when that has happened on a matter of such substance.

--- Later in debate ---

[Lord Thomas of Gresford]

My Lords, the veterans of devolution legislation—and I have sat through all the Acts, both Scottish and Welsh—know only too well that the architecture of devolution takes two forms: conferred powers and reserved powers. For many years, Wales had conferred powers; that is to say the power was held in the centre and handed down to the Welsh Assembly. Scotland has always had the reserved powers model, whereby it has all the powers subject to those that are retained. Clause 11, as it was originally drafted, had the flavour of the conferred powers model—namely, that powers would be taken back from Brussels and handed down piecemeal. What is so encouraging is that the Government have in this amendment put forward something that has the flavour of the reserved powers model; in other words, everything goes to the devolved legislatures, and the Government want to hold back or recover some of those powers through the machinery set out in the amendment. The essential feature of the reserved powers model is that the powers that are reserved are spelt out. That is why I support the suggestion that there should be a schedule setting out precisely what powers Ministers wish to retain or recover for the UK Government. This point was first raised by the noble Lord, Lord Griffiths, and has been repeated by the noble Baroness, Lady Finlay, the noble Lord, Lord Hain, and the noble and learned Lord, Lord Wallace.

Parliament can legislate on devolved matters, and has indeed done so, but always with consent. My amendments suggest that when the UK Government wish to bring back powers from the devolved Administrations, that ought to be with consent. We have a strong common interest in a UK single market. There will be divergence, no doubt: a Welsh Government may want to support lamb and a Scottish Government barley—I do not know what they will want to support, but there all sorts of possibilities of divergence; that is what devolution implies. But we have this strong common interest, and if we work at it and show some trust, which has been so lacking in the negotiations that have taken place so far, then we may come to a solution. That is why I protested at the attacks made upon a democratically elected Scottish Government. I have great Scottish interests and do not support the SNP in any way at all, but nevertheless the Scottish Government, rightly or wrongly, represent the voice of the Scottish people and should be treated with respect—you have to treat them with respect if you are to deal with them.

I urge the Government to take the necessary steps to put some trust into these institutions, and to try to gain the consent of the devolved Administrations for what they want to do. If ultimately consent cannot be obtained, let us have as a safeguard a mechanism such as that proposed by the noble and learned Lord, Lord Mackay of Clashfern, which resolves any disputes. Ultimately, the final decision could be left to the United Kingdom Parliament, as the noble and learned Lord’s amendment suggests, but surely there are many steps to which the devolved Administrations can and will want to consent before we ever got to that stage. I urge the Government to put consent and a positive dispute resolution mechanism into the Bill.

European Union (Withdrawal) Bill

Lord Thomas of Gresford Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I do not agree that these are simply technical amendments. The issues arise from Clause 7, headed, “Dealing with deficiencies arising from withdrawal”, which gives a Minister of the Crown power to,

“make such provision as the Minister considers appropriate to prevent, remedy or mitigate”,

deficiencies. Clause 8 of the Bill that we have discussed at such length deals with a Minister of the Crown making regulations as he considers appropriate,

“to prevent or remedy any breach, arising from the withdrawal of the United Kingdom … of the international obligations of the United Kingdom”.

Clause 9 is headed, “Implementing the withdrawal agreement”, and similar powers are given to a Minister of the Crown. Schedule 2 is headed, “Corresponding powers involving devolved authorities”. Part 1 of that schedule deals with deficiencies and Part 2 with international obligations. Part 3 is headed, “Implementing the withdrawal agreement”. One would have expected corresponding powers for Welsh Ministers and Scottish Ministers in those areas within their own competences, but each of those parts of Schedule 2 says that regulations may not,

“confer a power to legislate”.

Therefore, unlike the powers granted to a Minister of the Crown in the UK Parliament, the powers to legislate are withheld from Ministers in the devolved Assemblies. That is the critical issue, which is a matter of principle and not at all technical.

[Lord Hennessy of Nympsfield (CB)]

My Lords, I regret that I was unable to speak at Second Reading. I promise that I shall not make up for it this afternoon; I shall be very brief.

With the clauses before us this afternoon and evening, we have reached a truly load-bearing piece of the Bill. In my more anxious moments I sometimes think that the very weight of the kingdom is resting upon it, and that, if it is misjudged, the chances of the union eventually crumbling would be worryingly greater.

I do not doubt the Government’s good faith in the negotiations within the Joint Ministerial Committees but, as other noble Lords have already mentioned, the devolutionary spirit of 1998 needs to suffuse the discussions in those committees’ deliberations, and, indeed, ours in both Houses of Parliament.

If the European question infects and envenoms the union question, the country will suffer a self-inflicted blow of immense proportions. Of course, there is a need to retain an effective internal market within the UK. That is absolutely crucial, but the sustenance of the union—the essential quiddity of our nation—is paramount, which is why I express my wholehearted support for the thrust of the amendments in the name of my noble and learned friend Lord Hope of Craighead.

[Baroness Goldie (Con)]

My Lords, first, I both echo and reaffirm what the noble and learned Lord, Lord Hope, said: there must be respect for the devolved Administrations. I emphasise that as emphatically and cogently as I can at this Dispatch Box, and I confirm that the Government are wholly committed to demonstrating that respect.

As a number of your Lordships observed, the Government have tabled amendments to Clause 11, and we will give them our full consideration shortly. We have to acknowledge that the position we ultimately reach on Clause 11 will have implications for related policy on devolution in the Bill. Indeed, the noble and learned Lord, Lord Hope, acknowledged that. I can reassure your Lordships that we are mindful of the need to revisit the approach we have taken for the Schedule 2 powers in the light of that forthcoming debate on Clause 11. I therefore thank the noble and learned Lord Hope for instigating this debate on whether the devolved Ministers should be permitted to sub-delegate their Schedule 2 powers.

Amendments 266 and 278 would remove this restriction from the correcting power and the international obligations power for Scottish and Welsh Ministers and for Northern Ireland departments. Amendment 292 relates to the withdrawal agreement power and would have a wider effect, but I understand that the intention is the same. I should be clear that we do not oppose in principle the idea that these powers should be able to be sub-delegated to and by devolved authorities where appropriate cause is shown. This is already evident in the Bill. Noble Lords will see that this restriction—for instance, in paragraph 1(4)(b) of Schedule 2—is already qualified to allow for the sub-delegation of a power to make rules of procedure for a court or a tribunal. This ensures that the power can be sub-delegated where appropriate to ensure judicial independence. We have invited the devolved Administrations to offer any examples of where sub-delegation would be needed, and we have made clear that where they identify such examples we shall consider drawing further exceptions to the restriction. So far, no examples have been given.

It has been our intention—this may surprise the Chamber—not to make the powers in this Bill any wider than is appropriate. Opening up the possibility of sub-delegation by devolved Ministers in all cases where no prior need has been demonstrated does not align with this intention. However, I have listened to the contributions made this afternoon and have heard the concerns that your Lordships have expressed today. I have taken particular note of the question of respect as it relates to the perceived unfairness of a possible disparity between the devolved ministerial powers and the corresponding powers for UK Ministers.

[Lord Thomas of Gresford]

I do not understand the expression “sub-delegation” that the Minister uses. Does she suggest that when powers are given to Ministers in the devolved Administrations, that is “sub-delegating”? I do not think that is the appropriate term.

[Baroness Goldie]

It is merely a generic description of the power to exercise delegated power-making by regulation, as encompassed by these provisions in the Bill.

I reiterate that I accept that these are serious points. They deserve serious consideration, and I can confirm that the Government are prepared to look again at where such a change may be merited for the use of the powers by the devolved Administrations in this way.

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[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.

The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.

Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.

[Lord Thomas of Gresford]

Your Lordships should appreciate that the devolved Administrations can make law but have been constrained by EU law in the areas of their competencies. If EU law is taken away, we would expect the devolved Administrations to carry on without that constraint. Previously, there had been no constraint on their making law within their competencies from Westminster, only from Brussels. Taking away Brussels suddenly imposes Westminster constraints on the devolved Administrations in areas such as agriculture, which have been devolved to them, but it also means that the devolved Administrations cannot make any changes to the law at all—even when it is, for example, an agricultural matter. It is not simply taking away the constraint of Brussels, but imposing something entirely new. Westminster politics comes into it then; considerations that have not emerged into the arena before suddenly become important. That is why these are matters of principle and deeply difficult to resolve.

I was so pleased to hear the noble Lord, Lord Hennessey, say that this was such a difficult area because I suggested in my Second Reading speech that we should have taken devolution completely out of the Bill. At that point, the Government would have had no problem in getting legislative consent from Scotland and Wales and could have sorted out devolution issues as a completely separate matter. Now, your Lordships are listening—in the context of the EU withdrawal Bill—to a very difficult issue.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, I had not intended to speak in this debate because in many respects government Amendment 302A answers the initial point of concern—that the current limitation on competence in the Scotland Act under European Union law would be replaced by a restriction on retained EU law. Of course, under the new amendment that has gone, but there is a wider point on which the Minister could perhaps assist the Committee, which arises from the draft agreement on the transitional period.

As I understand it, during the transitional period basically the acquis will still apply. I have looked at Articles 4 and 82 of the draft agreement. Article 4 says:

“Where this Agreement provides for the application of Union law in the United Kingdom, it shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States”.


Article 82 says:

“The Court of Justice of the European Union shall continue to have jurisdiction for any proceedings brought before it by the United Kingdom or against the United Kingdom before the end of the transition period”.


We will have a lot of debates this afternoon about whether UK Ministers, Scottish Ministers or Welsh Ministers will be exercising powers after exit day, but can the Minister indicate how the United Kingdom Government see the position? If we are going to have to abide by European Union law having the same legal effect as it produces in the Union, is there any room for movement at all? How is effect going to be given to that if, under Clause 1 of the Bill, the European Communities Act 1972 has been repealed?

[Lord Thomas of Gresford]

My Lords, I cannot allow the noble Lord, Lord Foulkes, to continue with his heresy that the Government are right in what they are doing. I noticed the shock that passed over the face of the noble Lord, Lord Forsyth. What I think the noble Lord, Lord Foulkes, does not appreciate is that the proposal of the Government is to introduce frame- works into this country to save the internal market of the UK, whether or not the devolved Administrations consent. All they are prepared to do, as the noble Baroness the Minister said in response to something earlier, is to consult—they are not necessarily seeking agreement. That is where he has it wrong.

[Lord Foulkes of Cumnock]

No, I have it absolutely right. I know that that is precisely what it is. I have said that on previous occasions. But, with respect, it was the couple of speeches that the noble Lord, Lord Thomas, made earlier on that moved me in the Government’s direction.

--- Later in debate ---

[Lord Keen of Elie]

In so far as they are carried forward by primary legislation—and I rather anticipate that that will be the case—they would engage not only the Sewel convention but the provisions of DGN 10, the devolved guidance note, because there may be areas where these matters impact on the competence of Scottish Ministers. That is what is anticipated and I have no difficulty with that.

I keep trying to answer a question raised by the noble and learned Lord, Lord Wallace, about what happens with regard to the transition period. Clearly, that will have to be addressed in the context of the withdrawal agreement Bill—and that, as has been indicated before, may result in some amendment to the existing provisions of this exit Bill.

[Lord Thomas of Gresford]

As I understand what the Minister is saying, ultimately everything has to be settled by primary legislation, so there will be a single market in the United Kingdom that is settled by primary legislation—for which legislative consent will be sought and no doubt given. What we are talking about is an interim period when Ministers take powers to themselves. Over a temporary period they will in effect dictate what the framework agreement will be until there is a final agreement in a number of years—that is what I understand the Minister to say.

[Lord Keen of Elie]

With great respect, I do not think the noble Lord, Lord Thomas, has understood what I said. It is not a case of us dictating anything to the devolved Administrations; it is a case of ring-fencing these limited competences until we have reached agreement with the devolved Administrations as to what the framework agreements will be. They will then be put forward for the purpose of legislative consideration in the usual way. But it is not suggested that we are going to start regulating agriculture in Scotland in the meantime—that is not what is comprehended by this at all. I do not know whether I asked this earlier, but will the noble and learned Lord withdraw his amendment so that I can sit down again?

[Lord Thomas of Gresford]

Before the Minister does, how long will this ring-fence last? I believe the Barnett formula was temporary; how long does the Minister envisage the ring-fence will last before there is a proper legislative framework?

[Lord Keen of Elie]

It will last until we have managed to implement all of the framework agreement. That will be a finite period—there is no question about that. Indeed, if the noble Lord looks at the proposed amendment to Clause 11, he will see that there are various checks and balances, including the requirement that Ministers report to Parliament if they retain the powers for any longer. So that is already addressed.