European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

[Lord Wallace of Tankerness (LD)]

My Lords, I shall speak to the amendment in the name of the noble Lord, Lord Foulkes of Cumnock, also subscribed to by my noble friend Lady Bowles. The amendment is primarily a probing one, to seek clarification from the Government on what they are seeking to do here. Paragraph 2 of Schedule 1 states:

“No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day”.


So if one allows for the double negative, it rather suggests that, if it was a general principle of EU law that had been determined by the European Court in a case before exit day, it will continue to be part of domestic law. Having reached that point, the following paragraph says:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”,


and that no,

“court or tribunal or other public authority may, on or after exit day … disapply or quash”—

and so forth.

I am intrigued about why, having apparently established that there is a general principle of EU law that becomes part of our domestic law, when what is given away with one hand is taken away with another, one is not allowed a remedy based on that general principle of EU law. It would be helpful if the Government could clarify that.

The matter was raised in the report of your Lordships’ Constitution Committee, which at paragraph 117 of its report quotes Professor Alison Young, who wrote:

“Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ … This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. … But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche, the stronger remedy currently found under EU law for the protection of fundamental rights will disappear”.


Again, I seek clarification from the Government as to why they believe that these protections should disappear as currently found in EU law. Indeed, the committee in paragraph 120 concludes:

“The effects of excluding the Charter rights, retaining the ‘general principles’, but excluding rights of action based on them, are unclear … We recommend that the Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit”.


I sincerely hope that the noble and learned Lord will take the opportunity when replying to the debate to respond to that recommendation from the Constitution Committee and give us a clarification.

There was also one specific point, on which I would ask for a view from the Government Front Bench. The provision in paragraph 3 is:

“No court or tribunal … may, on or after exit day … disapply or quash any enactment … because it is incompatible with any of the general principles of EU law”.


I assume that that would mean to any enactment pre exit, which could of course include an Act of the Scottish Parliament. Therefore, would the provision in paragraph 3 prevent any challenge being made to an Act of the Scottish Parliament passed before the exit day on the grounds that it was outwith the legislative competence of the Scottish Parliament because it was incompatible with those general principles, but not on the grounds that it was incompatible with any other pre-exit European Union law?

In other words, if other EU law had been satisfied but there was still a problem or it was still not compatible with EU principles, would an action that had been raised before exit day on the grounds that it was incompetent have to fall because no court could make a determination of it because of this paragraph? Some clarification on this point would be welcome. It would appear that a principle is established, but not the remedy that might go with it.

[Lord Pannick]

My Lords, I have a similar question for the Minister. In paragraph 1(1) of Schedule 1, we are told:

“There is no right in domestic law on or after exit day to challenge any retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”.


I understand why that should be so, by reference to EU law principles, because at the moment you cannot challenge, in our courts, the validity of an EU instrument; you have to go to the Court of Justice. I am not sure whether the provision in paragraph 1(1) prevents, after exit day, a challenge to a provision of retained EU law brought by reference not to EU law but to common law principles. For example, are challenges on the grounds of legal certainty, the presumption against retrospectivity, or proportionality, which has already been mentioned, prevented by paragraph 1(1)?

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

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

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

[Lord Wallace of Tankerness]

My Lords—

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

Leveson Inquiry Update

Lord Wallace of Tankerness Excerpts

Thursday 1st March 2018 Lords Chamber

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness (LD)]

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

[Lord Keen of Elie]

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

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

Moved by

[Lord Wallace of Tankerness]

16: Clause 2, page 1, line 12, after “passed” insert “and commenced”

[Lord Wallace of Tankerness (LD)]

My Lords, the amendment stands in my name and that of the noble Lords, Lord Foulkes, Lord Adonis and Lord Dykes. This is very much a probing amendment and I do not intend to detain the Committee long, as the issues are quite clear.

Clause 2 refers to EU-derived domestic legislation that has,

“effect in domestic law on and after exit day”,

and then goes on to explain what EU-derived domestic legislation means. If we then fast forward to Clause 14, we see that an enactment,

“means an enactment whenever passed or made”.

We are trying to get some certainty into what is meant by that—and I shall come on more specifically to enactments of the Scottish Parliament.

We are seeking to probe what is intended by this. For example, if an enactment has been made but the commencement of a particular provision is not until a date post exit day, what is the status of that? Is it intended to refer only to those enactments when an Act has been made but there has been a commencement before exit day?

Let us look specifically at Acts of the Scottish Parliament—Acts of the Welsh Assembly may well come into a similar category. Paragraph 100 of the Explanatory Notes, which refers to similar phraseology in Clause 5, states that,

“an Act is passed when it receives Royal Assent”.

The Scotland Act 1998, Section 28(2) states:

“Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent”.


So there are two stages—passed by the Parliament and then receiving Royal Assent. Amendment 342, in my name and that of my noble friend Lord Thomas of Gresford, seeks to give clarity that this will be an enactment when it has received Royal Assent.

There is an argument that it should be an enactment when it is passed by the Scottish Parliament or the Welsh Assembly. I took the view that it was preferable to make it after Royal Assent because there are some reasons why between being passed by the Scottish Parliament and receiving Royal Assent it could be derailed. As the noble and learned Lord, Lord Keen, as Advocate-General for Scotland will know only too well, in whichever capacity he is appearing at the Dispatch Box, he has powers under Section 33 of the Scotland Act to refer to the Supreme Court a Bill or any provision of a Bill which he believes may not be within the legislative competence of the Scottish Parliament. He has to do that within four weeks of a Bill being passed by the Scottish Parliament, and then it would be a matter for the Supreme Court as to how long it took. So you may have an enactment, or a piece of legislation—let us put it neutrally like that— which has actually been passed but may go to the Supreme Court and the Supreme Court may strike it down, so it may never actually become law. That is why I took the view that, in trying to determine when an enactment becomes an enactment, it should be in the case of Acts of the Scottish Parliament when it receives Royal Assent.

To some extent this is academic. If you were to challenge me and ask me to give an example, I probably could not—but I am sufficiently acquainted over many years with the laws of unintended consequences to know that something will happen. You can bet your life that this issue could well come up and, rather than have the matter taken through the courts, it would be preferable, for certainty purposes, to put in the Bill when an enactment of the Scottish Parliament actually becomes an Act. The preference would be for when it receives Royal Assent.

This is a probing amendment but, if it is the noble and learned Lord who replies, I hope that he will accept that there is an issue here. The wording of our amendments may not be the ones that the Government would prefer, but perhaps he will accept that there is an issue here and the Government will bring forward their own amendment to clarify the point so that, at some future date, we do not have a situation where our learned friends at the Scottish Bar make lots of money out of disputing this, and we can resolve this. It is not a major point but it is one that merits clarity, and I hope that we can get a positive response to these amendments. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I am really grateful to the noble and learned Lord, Lord Wallace of Tankerness, himself a former Advocate-General, for moving this amendment. In the light of what he said, all I can say is that I agree with his every word.

[Lord Keen of Elie]

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

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

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

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

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

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

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

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

[Lord Wallace of Tankerness]

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

Amendment 16 withdrawn.

European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

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

[Baroness Kennedy of The Shaws]

My Lords—

[Lord Wallace of Tankerness (LD)]

My Lords, may I speak to Amendment 63A?

[Baroness Kennedy of The Shaws]

I stood up before the noble Lord, Lord Faulks, sat down as I knew he was coming to an end. He mentioned, and I accept entirely, his position that the Government may have excluded the Charter of Fundamental Rights because of uncertainty. But for many people it is an indicator of something else: that Conservative Party manifestos over a number of years have promised that the Human Rights Act would be removed. On many occasions, we have heard leading Conservatives say that we should remove ourselves from the European Convention on Human Rights, too. The absence of the Charter of Fundamental Rights from the Bill suggests to many that this is part of a journey taking us out of any international arrangements dealing with the protection of human rights, and that that is the real purpose.

--- Later in debate ---

[Lord Faulks]

No Parliament can bind its successor; one would expect every Government to consider human rights as an ongoing process, and how best to protect them.

[Lord Wallace of Tankerness]

My Lords, I will speak to Amendment 63A, which is in my name and has already been spoken to with great passion by the noble Lord, Lord Cashman. He gave an excellent antidote to a debate that has otherwise been an important but nevertheless cerebral examination of the legal position of the European Charter of Fundamental Rights.

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Wallace of Tankerness]

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

[Lord Keen of Elie]

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

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

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

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

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

Brexit: Devolved Administrations

Lord Wallace of Tankerness Excerpts

Thursday 25th January 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I too congratulate the noble Lord, Lord McInnes of Kilwinning, on introducing this important debate. It is a great pleasure to follow the noble Lord, Lord McConnell of Glenscorrodale, with whom I worked co-operatively and productively in government in Scotland for six years.

I think I was one of those, along with the noble Lord, Lord McInnes, who believed in the union—indeed, I speak unashamedly as a member of the only party that unequivocally supports Scotland within a United Kingdom and a United Kingdom within the European Union—but I was one of those who felt fragile about Scotland in the union in the immediate aftermath of the 2016 referendum. Indeed, when the First Minister was putting forward the idea of a second referendum, which, as we all know, has subsequently produced a collective yawn, she found out that it was difficult to persuade some of her own supporters. A significant number of people who had supported independence also supported Brexit. I actually applaud the consistency of that position.

I also think that what we are now finding is that, almost certainly inadvertently, the Scottish Government are starting to make out some good arguments for Scotland remaining in the United Kingdom. Last week, they published a paper entitled Scotland’s Place in Europe: People, Jobs and Investment, which said that a failure to stay in the European Union single market or secure a free trade agreement would see Scotland’s GDP around £12.7 billion lower by 2030 than it would be under continued EU membership. That amounts to a loss equivalent to £2,300 per person per annum. Our experience of the somewhat fantasy figures produced by the Scottish Government in their White Paper in the run-up to the independence referendum should perhaps mean that we take these figures with some care, but the general impact will not be doubted.

But if that is the impact of leaving the single market, what greater impact would there be of leaving the single market of the United Kingdom, which has lasted for more than 300 years with a single currency and a common language? The SNP point to the fact that the European Union market is one of 500 million, but as Mr Kevin Hague of These Islands says in his blog this week:

“Of course the EU market is much larger, but even after nearly 45 years of unfettered market access our exports there are relatively small (16%) compared to those to the rest of the UK (63%)”.


So we may perhaps suggest that leaving the single market of the United Kingdom would have an impact four times as great.

The noble Lord, Lord McInnes, said we should not be complacent. Indeed, we cannot take our union for granted; it needs careful nurturing. That is particularly so at a time of constitutional upheaval. I agree with the noble Lord, Lord McConnell, who said that as we approach the European Union (Withdrawal) Bill we must apply to it the rigour with which the initial devolution settlement was approached in 1997-98. There will be plenty of opportunities over the next few weeks to look at that Bill in general and Clause 11 in particular.

I do not believe that this Government have done the union any favours by the cack-handed approach they have adopted to the Bill, particularly their treatment of the devolution settlement in Clause 11. As the conclusion of the first report of the Public Administration and Constitutional Affairs Committee in the other place said in November:

“The overall concerns regarding the devolution aspects of the EUW Bill arise from the constitutionally insensitive nature of the UK Government’s approach in Clause 11”.


It is not fit for purpose. It turns on its head the spirit of the devolution settlement: that everything is devolved except what is expressly reserved.

We now seem to have got some recognition from the Government that they got it wrong. The Secretary of State for Scotland promised amendments in the House of Commons. I will not indulge in scoring political points that they were not produced; I think it is better to get it right than rush it. However, it is a matter of regret that the elected House will not have a proper opportunity to consider the amendments—only in ping-pong.

I very much share the view expressed by the noble Lord, Lord McConnell, that getting an agreement should not be terribly difficult. In Scotland, there are an estimated 111 instances where powers being repatriated have a devolution component. The Scottish Government agree that there are areas—not least with regard to the functioning of the single market in the United Kingdom—where UK frameworks are necessary. The United Kingdom Government agree that some elements can be directly devolved to Belfast, Cardiff and Edinburgh on Brexit day plus one, but on others we will require memorandums of understanding, working together and common agreements. Rather than political grandstanding, a bit of rolling up the sleeves and getting down to it would be very helpful.

I cannot accept that a Parliament such as this—which in the past two years devolved the whole of income tax, with one or two exceptions, to the Scottish Parliament—will find a stumbling block when it comes to issues such as chemical regulations, including pesticides, or energy performances and building directives. A good dose of common sense will sort this out. The Minister should tell the House, as we approach Second Reading, where the agreements are that have already been reached. Is it a complete stalemate, or are there areas where it has already been identified what goes into each basket, be it in terms of common frameworks, memorandums of understanding or direct devolution?

The European Union Committee, whose report, as the noble Lord, Lord McInnes, indicated, we debated in October, talked about the need to set aside differences and work constructively. That is particularly the case today. Looking to the future, we need that spirit of co-operation.

Last night, I attended a seminar by the Institute of Chartered Accountants of Scotland—I refer to my entry in the register of interests as chair of the regulation board—on what we can learn from Canada for Brexit. I learned that when CETA was being negotiated, representatives from the provinces and the territories were always in the negotiation room. I think the Government could do a lot better than they have been up to now in engaging and embracing active collaboration and co-operation from the devolved Administrations. Early on, I remember giving evidence to the Select Committee on the Constitution, where it was suggested, not only by me, that there was much merit in seconding civil servants from the Welsh and Scottish Governments into DExEU or the Cabinet Office to assist. I am not sure whether it ever happened; perhaps the Minister can tell us.

Again, looking to the future, when the UK frameworks are established—and they must be established by consent—we should look at ways in which we can entrench them, be it by statute or, as the Welsh Government have suggested, a UK council of Ministers, so that the UK Minister does not act as the English Minister in imposing a solution but that there is respect among the different nations of the United Kingdom and their Ministers. In that way, we can move forward. If it is by establishing these relationships and providing suitable mechanisms that we take the United Kingdom further down the road to federalism, then the very dark cloud of Brexit may yet have a silver lining.

--- Later in debate ---

[Lord Duncan of Springbank]

I thank the noble Lord, Lord McConnell, very much for his intervention. The respect agenda is at the heart of the answer to that question. The deep dives are vital for each of the participants to recognise that the solution needs a common framework to address the particular challenges. There will be tensions—I do not doubt they will exist—where there is disagreement, where one of the Administrations say, “Actually, in this particular area, we believe this and the other one disagrees with it”.

Part of the bigger challenge is the movement of rules coming back from the EU, where there are—as the noble and learned Lord, Lord Wallace of Tankerness, pointed out—111 laws that directly affect Scotland. For Northern Ireland, it is more than 140; for Wales, it is around 60. Of course, because of the devolved settlements, the rules are different; so again, the point is to try to find areas of common consensus. In truth, representatives of the various individuals who are part of the stakeholder community will each have to be able to defend their points to the stakeholders, to explain to them why they are arguing one way or another. Those stakeholder communities must also lend their acceptance to this particular point, because upon the hearing the outcome of these discussions, they cannot—and should not—rise up in arms and say that it is an absolute travesty and a scandal. They should be satisfied that this is the best and right way of doing things. The important thing to emphasise is that this is not in any way an attempt by the UK Government to demand certain concessions from the devolved Administrations. That is not the ambition at all.

On the wider question of the institutional arrangements whereby the various parties come together and meet, there have been challenges. There is no point in pretending otherwise. I have a very helpful list somewhere. Noble Lords have asked very thorough questions so I have many pieces of paper; I am now hunting for the right one. We had a hiatus between February and October 2017 for one particular reason: the election. That slowed things down quite considerably. The important thing to stress is that for a very long period, the JMC’s arrangement had been all but moribund: it had not been a functional part of the engagement between the devolved Administrations and the UK Government. Recognising that that was no longer fit for purpose, the UK Government have sought to expand the number of forums by which we have agreement under the JMC, as well as recognising that the frequency of those must therefore be driven by the necessity of the particular issues. That is why what would have been the traditional ongoing European legislation—which was the most important forum for the focused issues before the devolved Administrations—is, if anything, the quieter forum. The negotiations forum is now absolutely critical, as is trying to make sure that there are opportunities at those meetings for a free and frank discussion. There are, and I can assure noble Lords that the discussions are very free and very frank.

There are challenges. I am reminded of the words of the noble Lord, Lord Bruce of Bennachie. At the outset, one of the challenges in this area was that it was very hard to reconcile the demands of the different Administrations because they were not bridgeable in simple terms. So, the notion and the paper put forward by the Scottish Government could not be easily reconciled with the reality of what the UK Government believed they had to deliver after the referendum. That caused a lot of the political tensions. It is very hard to meet on common ground when one party is on one side of the chasm and one is on the other; you end up falling to the bottom like Wiley Coyote, with your arms flailing in the air. We were trying to avoid that outcome. It is bridge building that gets us across the chasm, I hope.

We need to give some consideration to the situation in Northern Ireland. Many noble Lords have rightly mentioned that there is a void in Northern Ireland. We cannot pretend otherwise. I can assure noble Lords that my right honourable friend the Secretary of State for Northern Ireland is actively pursuing facilitating the dialogue required to develop a functioning Executive. On more than one occasion, I have said from this Dispatch Box that Northern Ireland is ill served without an Executive. Although the civil service there can do a great deal to help in many different areas, they cannot do everything. That is why it is important to recognise again the need for a realistic and functional dialogue. Those talks are ongoing; we hope that those around the table will recognise the importance of securing agreement on this occasion but we recognise the challenges that we face.

On the question—again, raised by a number of noble Lords—of the agreement reached by the UK Government and the EU before Christmas, which touched on Northern Ireland and the border question, it is important to recognise that that is but one step toward a larger agreement between the UK and Northern Ireland. Without that agreement, there will be significant challenges for both sides. That is why, in this instance, the ongoing negotiations again seek to address the challenges. One would hope that through that, the negotiations will deliver the Northern Ireland question as part of a bigger settlement. Those negotiations are ongoing. I believe—this is where it becomes important—that we often find ourselves, particularly when following certain newspapers, caught up in an almost daily crisis of one sort or another, with the narrative driven forward in that fashion. However, if we step back and think about it, just before Christmas the UK Government managed to deliver on what they said they wished to do: secure agreement on these three key areas, to allow negotiations to begin shortly thereafter. They achieved that. From some of the reporting, you would have thought that they had failed, but they did not. They moved things forward in that fashion.

The time ahead will not be straightforward. I realise that we will have plenty of opportunities to discuss further the questions that underlie the repeal Bill. I am sure that many of the contributions made today will help inform the Government as they begin to think about how best to approach the investigations into the repeal Bill and its functionality. But we will have to resolve those questions here in such a fashion that we can return those amended clauses to the House of Commons to allow them to deliver upon that. I believe that we will make a difference and, indeed, do what this House always does: seek to make things better. I think the Government will appreciate the work done here in that area.

We have to recognise that the union is perhaps something larger than just the moment of Brexit and the discussions that surround it. A number of noble Lords have pointed out today that immediately after the referendum on Brexit, there was a great fear that our union would itself begin to experience some of the challenges but in truth, there has been a degree of resilience. As we witnessed through the, shall we say, unexpected general election last year, the parties that had perhaps anticipated doing better, certainly in Scotland, did not do so on the basis of what they offered the people. That should be a salutary reminder to anybody who believes that they have the people behind them: it is always worth looking over your shoulder, just to make sure they are still there. You cannot take the people for granted in this regard. The result of that election was a useful reminder to us all to focus on what the people want, whether that be the people of Scotland, the people of Wales or, I hope soon, the people of Northern Ireland.

We in this House must recognise that we have a role to play in ensuring that our union works, and works well. That is why I am indebted to my noble friend Lord McInnes for bringing before us today an opportunity to discuss and explore these issues. It is timely because next week, we will be knee deep in thorough discussions on the questions before us regarding repeal. As I try to answer the questions, I am aware how useful that will be to my colleagues in facilitating, I hope, the right sort of dialogue as we go forward. But I am also aware that there is heavy lifting to be done and we have not yet resolved these issues. On the question of Clause 11 as it affects the devolution settlement, we need to be able to bring before your Lordships a workable amendment that can deliver exactly what it says on the tin—and when we tell your Lordships that we have it, we are telling you that other people in Edinburgh, Wales and, through consultation, Northern Ireland agree that this is the way forward. That should allow us to make that necessary step.

When I began my remarks, I pointed out that in some respects we have been through a revolution, as only Britain can do, in the way that our powers have moved. But we have done so in a piecemeal fashion; again, a number of noble Lords made this point. We need now to refocus on trying to ensure that we are not making stumbling progress but have a clear objective: to make sure that the devolved Administrations fit into a sensible and workable government structure for the United Kingdom. People have to recognise that whether they are in Edinburgh, Wales or Northern Ireland, they have two Governments, not just one. It is important to stress that. Again, we need to be better at explaining to people what the Governments are doing and what their actual responsibilities are. Quite often there is sheer confusion on these points.

[Lord Wallace of Tankerness]

I generally agree with the point the Minister is making but, as part of that better integration, will he respond to the suggestion I made, based on the Canadian experience, that Northern Ireland officials and Scottish and Welsh Ministers might also be involved at the table in the forthcoming phase 2 negotiations?

[Lord Duncan of Springbank]

The noble and learned Lord, Lord Wallace, makes an important point. As a Member of the European Parliament many years ago—no, last year; time is just slipping through my fingers here—I am very conscious that the discussion was always about who sits at the top table and therefore represents the United Kingdom. I was always of the view that the table in London, where all the devolved Administrations argued these things through, was as important as the seat at that top table. Determining the UK position in this instance will be exactly the same. We must deliver a UK position which is part of the respect agenda and delivers for the peoples of Scotland, Wales and Northern Ireland that which is right, workable and appropriate. I can assure your Lordships that those will be dingdong discussions around the tables in London, where the heaviest lifting will be done. As to the point the noble and learned Lord makes, to be frank I do not know the answer, but the important table is the one where we bring together all these individuals to make sure that we are positioned to deliver on behalf of the people we represent.

I am conscious, again, that I am perhaps overstaying my welcome. On this day of Robert Burns, we are conscious that we celebrate that across the globe. So perhaps I might close with some words of Burns, which I thought were slightly appropriate:

“O let us not, like snarling curs,

In wrangling be divided,

Till, slap! come in an unco loun,

And wi' a rung decide it!

Be Britain still to Britain true,

Amang ourselves united;

For never but by British hands

Maun British wrangs be righted!”.

Criminal Justice (Scotland) Act 2016 (Consequential Provisions) Order 2017

Lord Wallace of Tankerness Excerpts

Wednesday 10th January 2018 Lords Chamber

I am minded to press this to a vote and to ask my colleagues on all sides to vote against the order. However, if the Minister is able to give the House a clear assurance that he will take this matter up vigorously with the Scottish Government, I will not press it, and he will have done the House and, even more importantly, the British Transport Police a great service.

[Lord Wallace of Tankerness (LD)]

My Lords, with characteristic vigour, the noble Lord, Lord Foulkes of Cumnock, has laid out the many misgivings that have been expressed about the proposed merger—it is not even a merger but a dismemberment of the British Transport Police, with the Scottish part of it being put into Police Scotland. Many of the arguments were rehearsed when your Lordships’ House debated the devolution of legislative competence for dealing with the policing of railways and railway premises during the passage of the Scotland Act back in 2016.

Before coming back to that, perhaps I may do the unforgivable and talk about what the order and the amendment say. As the noble Lord, Lord Duncan, indicated, the order takes forward the response by the Scottish Parliament to a decision of the Supreme Court on which the noble and learned Lord, Lord Hope of Craighead, sat in the Cadder case. I have a vivid memory of the time, because the Scottish Parliament had to pass emergency legislation immediately to address the breach of the European Convention on Human Rights that had been identified by the Supreme Court. At the time, as Advocate-General for Scotland, I had to take careful note of what was going on in the Scottish Parliament. We had a TV monitor of the parliamentary proceedings in my office because we had to decide very quickly whether we wished to make reference to the Supreme Court if we thought that any Bill had gone beyond the legislative competence of the Scottish Parliament and whether any amendments being passed right up to the last minute would change that. It was open to me under Section 33(3) of the Scotland Act 1998 to indicate to the Presiding Officer that I would not use the four weeks available to consider whether there should be a reference to the Supreme Court and to indicate that I would not refer it. At that point, with concurrence from the Attorney-General and the Lord Advocate, the Bill could go immediately for Royal Assent, and that is what happened.

It was always anticipated that there would have to be further legislation, which came along six years later, but with the benefit of a review undertaken by the then Lord Justice Clerk, now Lord Justice General Carloway. It is the provisions of that 2016 Act—which, I should point out, received Royal Assent two months before the Scotland Act 2016, to put into perspective what we are debating today—that give rise to the order. As the Minister said in his opening remarks, many of the provisions are to increase the rights of suspects held in detention and deal with the powers of police. Because the Scottish Parliament cannot legislate for police outside Scotland in relation to an arrest made in respect of a crime committed in Scotland, or make legislative provision for the British Transport Police—at least, it could not in 2016—the order is necessary to ensure that if the British Transport Police, for example, arrest someone, that person should have the same rights as if they were arrested by a constable of Police Scotland.

That is perfectly proper. These are the provisions of the order that relate to the British Transport Police, along with a further provision relating to stop-and- search powers, which are important and which we do not regret—far from it. I rather suspect that if Her Majesty’s Government reviewed the operation of the provisions in the light of incorporating the British Transport Police into Police Scotland, they might well find that it makes things simpler, because it would not need to be included in the order.

That is why I have misgivings about supporting the amendment, but it is important to reflect on some of the points made by the noble Lord, Lord Foulkes. It is important to say at the outset that the integration of the Scottish part of the British Transport Police into Police Scotland was not a recommendation of the commission under the chairmanship of the noble Lord, Lord Smith of Kelvin. It recommended devolution of legislative competence in relation to the policing of railways and railway premises and that the British Transport Police should become a cross-border authority. It is the SNP’s interpretation that it has to be integrated into Police Scotland. Integration was only one of three options that the British Transport Police working group identified. Significantly, it was the option with the highest degree of risk and was opposed by most stakeholders.

The noble Lord mentioned the recent report of Her Majesty’s Chief Inspector of Constabulary in Scotland. He found in paragraph 47:

“As the decision to transfer BTP’s functions in Scotland to Police Scotland was a Ministerial decision, no single, detailed and authoritative business case which articulates the benefits, disadvantages or costs of the transfer to Police Scotland was developed”.


In many respects, the Scottish Parliament has been asked to do this blind but, as we have heard, there is a majority. There was a failure to consult in any meaningful way, a failure to work out how we maintain the detailed expertise of the British Transport Police on the railways postmerger, how costs would be assigned and how potential disputes would be resolved. That is being done at a time when it is fair to say that considerable challenges face Police Scotland as a result of what I and my party believe was a botched centralisation. Indeed, my Liberal Democrat colleagues in the Scottish Parliament were lonely voices when they made the case against the centralisation of Police Scotland. We have seen a succession of resignations, suspensions of senior officers and early retirements, both in Police Scotland and the Scottish Police Authority. We welcome Susan Deacon’s appointment and hope she can get a grip on things, as she has recently taken the reins. There has been a failed IT project and a report from the Auditor-General in Scotland referring to a number of instances of poor governance and poor use of public money. If that had happened in the second biggest police force in England, let alone the second biggest in the United Kingdom, we would probably have had a “Panorama” special by now. I am not sure why the media have not latched on to what has been going on.

I do not think the time is right at all for this merger. There are other issues which the Chief Inspector of Constabulary has identified in his findings. Among them are the facts that full costs have not been assessed, and the financial impact on railway policy in England and Wales of transfer of railway policing in Scotland has not yet been fully assessed. In that respect, will the Minister tell us, if it transpires that there are costs to transport policing in England and Wales, under the various memorandums of understanding with regard to allocation of costs, where will that cost fall? Will it fall to the Scottish Government to bear? That will undoubtedly be important as things go forward.

The noble Lord, Lord Foulkes, raised the potential issue of transfer of property. Are there any consequential orders or steps that have to be taken under the Railway Policing (Scotland) Act 2017 that would involve the United Kingdom Government in giving full effect to that? What would be the UK Government’s policy in relation to it? As the noble Lord said, there is some leverage here, and I hope it is used sensitively.

It is also fair, however, to acknowledge that this Parliament, including this House, agreed to the devolution of railway policing in Scotland. I was going to say that the ship has sailed but it is probably better to say that the train has left the station. It is a matter for the Scottish Parliament. My Liberal Democrat colleagues in the Scottish Parliament, supported by Labour and Conservative MSPs, sought to delay the merger until 2027 at the very earliest, failing which to oppose it outright—but it was a decision of the Scottish Parliament to reject that delay and, indeed, to support what happened. It would be remiss of this House to gainsay what has been done by the elected Scottish Parliament, but there are issues still to be determined and some indication of the Government’s stance on those would be very welcome.

[Lord Forsyth of Drumlean (Con)]

My Lords, the noble and learned Lord may be correct about the train having left the station, but I remind him that during the passage of the Scotland Act as it now is many of us warned about this problem—and he himself made a speech exactly saying that. But such was the political imperative from some people not to be seen doing anything that would cause an upset with the Scottish nationalists that we allowed this to go ahead. The result is that we are looking at the prospect of the destruction of an organisation that has served this United Kingdom well for more than two centuries. Is it two centuries, or over two centuries?

--- Later in debate ---

[Lord Duncan of Springbank]

The noble Lord may well say that but I stress again that the important thing is that the salient points raised by noble Lords today are considered in all seriousness by the programme board. I hope there will be an opportunity for that board to respond and to satisfy all the questions raised today. I have noted them down. To put them in context, we need to know that terrorism and security issues are addressed head on—there can be no diminution in these. We must recognise that this involves real police officers and that there can be no impact upon their well-being, their morale or their situation, and that they must be treated with respect throughout this process. We must be cognisant of the no-detriment principle. Where there are costs, we must understand how those costs will be allocated fairly and appropriately. We must also recognise that they should not be unfairly or inappropriately placed elsewhere.

[Lord Wallace of Tankerness]

On the question of costs and the no-detriment principle, is this a matter for the joint programme board to sort out or do the United Kingdom Government have a view as to how any detriment to the British Transport Police in England and Wales should be addressed?