European Union (Withdrawal) Bill
Monday 26th February 2018
(6 years, 1 month ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-II(a) Amendments for Committee, supplementary to the second marshalled list (PDF, 68KB) - (23 Feb 2018)
Lord Wallace of Saltaire
“( ) Regulations bringing into force subsection (1) may not be made until the Secretary of State has laid before both Houses of Parliament procedures agreed with the EU for continued coordination of foreign and security policy, including association with the EU’s military staff and the European Defence Agency, and these procedures have been approved by a resolution of each House of Parliament.”
Lord Wallace of Saltaire (LD)
My Lords, the Minister argued in winding up on the first group of amendments that we should be talking about the Bill and not about the issues raised by the amendments, which seemed a very ill-judged remark. This Bill is about a very wide range of policy areas—economic, constitutional and international—on which the Government are asking us to give them extensive powers, on trust, without telling us what they intend to do. The question for many of us is that we cannot trust the Government so far in giving them all those additional powers, unless they tell us rather more clearly what they intend to do.
These amendments deal with the implications of leaving the EU for British foreign, security and defence policy, and with the management of those policies when we withdraw. As we withdraw, which is what this Bill is about, we will also withdraw from the structures of common foreign policy and the common security and defence policy in the Treaty on European Union, as specified in a large number of articles. So what will we do then? The leave campaign never addressed this in the referendum, so there is no way one can say, “Well, it’s the will of the people, we can’t stand in their way”. The leave campaign denied that the EU was ever concerned with anything to do with security, foreign policy or defence. We were told when we joined that it was just about the common market, and now it has turned into something else. Anyone who has read Edward Heath’s 1968 Harvard lectures, what he said when he became Prime Minister and what Sir Alec Douglas-Home said as Foreign Secretary, what Jim Callaghan did as Foreign Secretary and what the noble Lord, Lord Carrington, followed through on, including his London report on strengthening the mechanisms of common foreign policy, and what Geoffrey Howe achieved, would know that Britain was absolutely at the heart of forming common foreign policy procedures in the European Union. I remember writing something about it for publication in a Chatham House journal in the late 1970s and being briefed very helpfully in the Foreign Office by the official who co-ordinated our input to common foreign policy, whose name was Pauline Neville-Jones. One or two Members of this House may, indeed, be familiar with the name. I also recall the noble Lord, Lord Forsyth, who sadly is not in his place at the moment, insisting even after the referendum that the EU had nothing to do with British or European security—and I gave him an annotated copy of the 2015 security and defence review with chapter 5, which is entirely about European defence co-operation, marked for his benefit.
Last September, the Government finally published a position paper on common foreign and security policy, which said, remarkably, that,
“the scale and depth of collaboration that currently exists between the UK and the EU in the fields of foreign policy, defence and security, and development”,
is such that we need,
“a deep and special partnership”—
a familiar phrase—
“with the EU that goes beyond existing third country arrangements”.
It goes on to point out that the UK was a founding member of the EU’s CSDP and takes part in all 15 common security and defence policy operations and missions and concludes:
“The UK would like to offer a future relationship that is deeper than any current third country partnership … This future partnership should be unprecedented in its breadth, taking in cooperation on foreign policy, defence and security, and development, and in the degree of engagement that we envisage”.
Well, that was interesting. Nothing was said for months afterwards—and, finally, the Prime Minister last week gave her speech in Munich in which she went into a little more detail about what she at least, if not the rest of her Government, seems to envisage. She said:
“The EU’s common foreign policy is distinct within the EU Treaties … So, there is no reason why we should not agree distinct arrangements for our foreign and defence policy cooperation in the time-limited implementation period, as the Commission has proposed. This would mean that key aspects of our future partnership in this area would already be effective from 2019”.
In that case, it is about time the Government started to educate the population on what arrangements they propose to make with the European Union. I hope, at least, that someone has told the European Union the sort of things that we might like to envisage. She then goes on to talk about our: joining the European Defence Agency and the European Defence Fund; contributing to the European Union’s common development policy, but on the condition that we also play an active role in formulating future European Union defence policy—I am not entirely sure how we do that, as an outsider—co-operating in cyberspace and space; and dealing with a whole range of issues including, on internal security, a new bilateral treaty between the EU and UK.
Viscount Hailsham (Con)
My Lords, my purpose in adding my name to Amendment 12 is to enable the Government, through my noble friend, to explain what arrangements they intend to put in place before Brexit, in order to ensure that the United Kingdom is a full participant in the formulation of foreign and security policies which inevitably will be of great and enduring consequence to us all. The absence of such arrangements would be a conclusive argument against leaving the European Union. Noble Lords should be clear about this: if we wish to punch above the weight that naturally attaches to a country of relatively modest resources, it is because we are part of and not outside the structures of the European Union.
For five years, I had the good fortune to serve in the Foreign Office under the overarching authority of Douglas Hurd. It is much to be regretted that he is not able to participate in this debate. His authority within the diplomatic and international community was great. This was due in part to his patience, his personal integrity, the temperate language that he always employed and his willingness to compromise. He never sought to promote himself by appealing to the wilder fringes of any political party. My noble friend was a model of a Foreign Secretary and I commend his example to all his successors. I digress for a moment and say that I very much regret that this House does not have the opportunity of hearing from Mr Jack Straw and Sir Malcolm Rifkind, both of whom would have made a valuable contribution to this debate.
When working under Lord Hurd of Westwell, I had immediate departmental responsibility for a number of important areas: the collapse of the former Soviet Union; central and eastern Europe, most especially the war in former Yugoslavia; and the turmoil, then as always, in the Middle East. We did, of course, have distinctive political policies on all these matters and we have distinctive bilateral relations with the relevant countries and institutions. But looking back on my time in the Foreign Office I am sure it is true that we made a real difference when we were able to work with our European colleagues and within the framework of collective European policy.
Collectively within the European Union, the United Kingdom was more influential than it would ever have been standing alone. This is not the age of Lord Palmerston or Don Pacifico. If one looks forward to the major international problems that we now face, that judgment remains good. Consider the ambitions of Russia; the ever-increasing power of Asia, especially China; the fact that America is once again detaching herself from the rest of the world and, most notably, Europe; the risk of war on the Korean peninsula; international terrorism; the problems posed by climatic change; the instability in the Middle East and the rise of militant Islam. In respect of all these matters, a collective approach is infinitely more effective than the individual policies of a middling power such as ourselves.
There are also some specific problems to consider. What of our permanent seat at the Security Council? As a member of the European Union, our permanent seat was less controversial than it might have been. Outside the EU, our status as a permanent member will be under increased pressure and, in any event, the status of France will be greatly enhanced.
What about Gibraltar and the Falkland Islands? Outside the councils of the European Union we will not be able to rely on the automatic support of our European neighbours. Further, on any view, our role as America’s principal interlocutor with the European Union will cease. These considerations, by themselves, leaving aside all others, are a good and sufficient argument against leaving the European Union: that is my considered position. However, for the purposes of this debate, these concerns should cause this House to put questions to Ministers. We are repeatedly told by the Prime Minister and others that while we are leaving the European Union we are not abandoning our close ties. The noble Lord, Lord Wallace of Saltaire, usefully summarised our position paper, whatever it actually meant. We need more detail. We do not want bland reassurance. “Brexit means Brexit” is a quite meaningless phrase. It is not a policy or even an indication of a policy. Indeed, it is conclusive evidence of an absence of policy. Therefore, I say to my noble friend that this House is entitled to know in detail what arrangements will be put in place before we leave the European Union to ensure that the United Kingdom is a full, active and influential partner in the policy decisions that will certainly affect the lives of our fellow citizens for years to come. I doubt that this House will get a clear answer. I suspect that we will be none the wiser when the Prime Minister makes her long-awaited policy speech at the end of the week.
If decisions were made at last week’s meeting at Chequers, that is welcome. It is almost, though not wholly, true that any decision is better than no decision. However, we are entitled to ask why on earth such strategic decisions were not taken before we triggered Article 50 and not now, with but 12 months or so to go. The absence of any arrangements and procedures of the kind identified in these amendments is by itself a good reason—there are many other good reasons—to reject the policy of leaving the European Union. Therefore, I look to my noble friend to give clear guidance on what procedures and arrangements the Government propose to put in place. This House is entitled to clear and precise answers to these questions, for they are fundamental in character. This is not a time for indecision, fudge, weasel words or lack of clarity. Having our cake and eating it is not an indulgence now available to us.
Baroness Deech (CB)
My Lords, I had not meant to intervene but since the noble Lord, Lord Wallace of Saltaire, has speculated on my views, I wish to put some things in context. Obviously one seeks clarity but I think there is a certain note of hysteria going around. Only a few moments ago, we had a question and answer session showing just how impotent the EU, and, indeed, any of us, have been in relation to Syria. The EU does not even manage to pay its subscriptions to NATO and has been impotent in relation to Russia’s behaviour recently. However, our own performance as a permanent member of the Security Council, a position from which we cannot be dislodged unless one entirely rips up the charter, has been admirable. If we want to continue to be an interlocutor between the continent of Europe and America, it is not a good idea to shoot ourselves in the foot by being even more uncivil towards President Trump than is absolutely necessary. As far as foreign policy and security are concerned, we are members of the Five Eyes group, which, from what I have read, is rather more efficient in its actions than what is going on in the EU. While we of course want clarity, there is no need to panic. We have to consider what the EU has done historically in relation to foreign policy. Over the last 40 years, it has had as many failures as successes whereas our record has been pretty good.
Lord Judd (Lab)
My Lords, like the noble Viscount, I had the privilege of serving in the Foreign Office back in the 1970s. I underline his comment that it is a great shame that Lord Hurd no longer sits in the Chamber as he certainly was a very effective and powerful Foreign Secretary. One of the reasons he was successful was that he listened to people and adopted a reasonable approach to finding solutions.
There is no greater responsibility for a Government of the United Kingdom than to look after the well-being and safety of their people. At the moment there is a total dereliction of duty. We are about to abandon ways in which we have worked to protect the well-being of British people, while having absolutely no convincing indication of what is to replace our current methods of co-operation. Defence and security are inseparable and cannot be contained within national frontiers. They both require international solutions and co-operation. We also know, and debate it often in this House, that our armed services are very fully stretched; some would say overstretched. They cannot possibly do all that it is necessary to do on their own; they have to work with others. We have devised means whereby we can successfully co-operate in the interests of the British people. How on earth can we, with any sense of responsibility at all, say that we will withdraw from the existing arrangements without knowing exactly how we will fill the gap and maintain that indispensable co-operation?
This amendment, so ably moved by the noble Lord, Lord Wallace, is absolutely crucial and I am therefore very glad to have added my name to it. It does not apply just to this sphere, of course. We are being asked to buy a pig in a poke in too many areas. However, we cannot defend the British people by buying pigs in pokes, but by having absolutely convincing, watertight arrangements in place. There can be no interregnum between one regime and the next; we have to undertake this in time. Will the Government please this evening begin to give us some indication of precisely what the arrangements will be and what resources will be put into them?
Lord Hannay of Chiswick (CB)
My Lords, I was urged by my noble friend Lady Deech to be more polite to President Trump, so I will respond to that by thanking him extremely warmly for having brought home to us the value of the European Union’s common foreign and security policy. In the year he has been in office, he has singlehandedly illustrated why our national interests in a number of areas are much closer to those of our European partners than to those of his Administration: for example, as regards the nuclear deal with Iran, the rather unfortunate decision to move the US embassy to Jerusalem, his very lukewarm support for NATO, his withdrawal from the Paris climate change agreements and his trade policy. In all these areas he has brought home to us why this debate and this amendment, which I support, are vital to our future national interests. I hope that when the Minister responds, she will be prepared to go a bit further than generalities.
As others have already said, there is a complete lack of specificity in what the Prime Minister has said—she has, quite laudably, set out in very firm terms her desire that this should be a major pillar of the new partnership—about what the Government have in mind. It really is time that we saw more. The Prime Minister has spoken about a new treaty. We are in a negotiation. Normally, if you are in a negotiation and make a proposal, you table it. I have not seen the treaty. Has anyone seen it? I do not think that anyone has. Does it exist? I suspect not because, judging from the rather lukewarm attitude of the Foreign Secretary, he might not be able to produce much of an input into it.
This really is getting important now. We are only a year away from dropping out of all the complex machinery which makes the common foreign and security policy work. I have to say to my noble friend Lady Deech that her caricature of common foreign and security policy is bizarre. For example, the idea of a nuclear agreement with Iran originated in the European Union, and it was followed up, rather belatedly, by the United States. Therefore, I do not think that we should belittle such co-operation. In any case, the Prime Minister is firmly of the opinion that it matters and that we need to work very closely with the EU. I wonder whether it would not be better to say here and now—perhaps the noble Baroness the Minister replying to this debate could do so—that our co-operation in this area of common foreign and security policy is not subject to the rubric “Nothing is agreed until everything is agreed” and that it is, as we are trying to say but have been rather hesitant about saying, completely unconditional.
Lord Cavendish of Furness (Con)
My Lords, is the noble Lord aware that the phrase “Nothing is agreed until everything is agreed” came from President Tusk, not us?
Lord Hannay of Chiswick
It was not only President Tusk; it was part of the agreed conclusions of the first part of the negotiations—that is, we subscribed to it too.
As that first stage did not cover common foreign and security policy, all I am suggesting is that, now we are moving into that field in the negotiations, we should make it clear that our proposals—including the proposal for a new security treaty—are not subject to “Nothing is agreed until everything is agreed” but will be put forward to the mutual benefit of all parties. That would make a huge difference, because there is a lot of misunderstanding and a certain amount of suspicion that we are approaching this in a spirit of transactionalism—that we are trying to trade off one part of the negotiations against another. That would be a mistake in the field of common foreign and security policy. If it is to be pursued after we have left the European Union, it can pursued on a basis of mutual benefit only and not by a transactional approach.
Therefore, I hope that when the Minister replies to this debate she can give a little more clarity on what the Government are seeking and that she can state in absolute terms that the unconditional nature of what we are pursuing here is our policy.
Lord Adonis (Lab)
My Lords, I have four amendments in this group, which, following on from what the noble Lord, Lord Hannay, has just said, seek to maintain British membership of the EU’s Political and Security Committee, the EU’s common foreign and security policy, the EU Foreign Affairs Council and the EU Intelligence Analysis Centre.
First, I warmly welcome the noble Baroness to the Front Bench and to our debates. We have very high hopes of her and her response to this debate because she is not the noble Lord, Lord Callanan. We regard her as the more accommodating face of Her Majesty’s Government. We think that, while the noble Lord, Lord Callanan, is not on the Front Bench at the moment, she has an opportunity to make all kinds of very sensible statements of government policy which can then go on the record and we can move on from there. This is a golden opportunity for her to do so in respect of foreign policy.
The noble Lord, Lord Wallace, made a very powerful speech on why it is important that we remain thoroughly engaged in the security apparatus of the European Union and he spoke about the big dangers that face us as we leave. I do not think there is any point in my repeating those remarks or those of the noble Lord, Lord Hannay. I just want to make two comments.
The first relates to the only speech that the Prime Minister gave, on 25 April 2016, in the debate on the referendum, where she weighed the arguments for remaining in the European Union. What is so remarkable about that speech is how much emphasis—it was an almost exclusive emphasis—she placed on the security aspects of the European Union and the dangers to our security of leaving. Clearly, given her experience in the Home Office, she was particularly concerned about some of the Home Office dimensions of that, and we will cover those in a later group. However, she also raised the broader security issues.
If one looks at the words that she used in that speech, it is very clear that she regarded membership of the multilateral institutions of the EU, particularly in foreign policy and security co-operation, as being of huge importance to the Government and to this country. She said:
“If we were not members of the European Union, of course we would still have our relationship with America … But”—
these are the key words—
“that does not mean we would be as safe as if we remain”.
As the noble Viscount, Lord Hailsham, said, we will be leaving all these institutions in one year, and I believe it is incumbent on the Government to give the House some sense of what their policy will be in respect of those institutions. That is hugely important.
My second point is to consider the course that we now appear to be set on. It is what has become known as “hard Brexit”, which is leaving not just the security institutions of the European Union but the economic institutions—the single market and the customs union. I am a novice to international security policy. I have spent most of the last 15 years trying to reform public services at home and, like many other noble Lords, I have had to get to grips with these issues. One of the most important and, for me, influential books that I have read while I have tried to understand what this might mean for the future of Britain in Europe and globally is by Professor Brendan Simms at the University of Cambridge. He has written a quite brilliant book called Britain’s Europe: A Thousand Years of Conflict and Cooperation, which charts our whole relationship with Europe during the last millennium.
Professor Simms makes a quite obvious point, the significance of which becomes greater and greater as we appear to be heading towards leaving not only the security but the economic institutions of the European Union. The basic but fundamental point he makes is that countries which are engaged in trade conflicts and trade wars find it that much harder to co-operate on security issues. To my mind, in terms of the security of the United Kingdom going forward, the most alarming development at the moment is that, as we appear to be in an ever more tense and potentially conflictual relationship with France and Germany in particular over the future of our trade policy, and if we are to start engaging in tariff wars and setting up rival customs arrangements and things of that kind which could lead to quite significant trade conflicts, that can only weaken our security co-operation with them over the medium to long term.
Those of us who are in favour of remaining in the European Union are often accused of carrying out what is called Project Fear, but I recommend to the Minister and to noble Lords the Prime Minister’s speech of April 2016. She draws a direct parallel between the instability of relations between European powers before 1914 and what could happen if we start to fracture those relations today. That came from her, not me. Therefore, what we look for from the Minister while she is able to make positive statements about Europe in the absence of the noble Lord, Lord Callanan, is some indication that she appreciates the need for very close co-operation with our European partners on trade and economic matters, not least because that will tend to promote close alignment in foreign and security policy.
Lord Cavendish of Furness
My Lords, does the noble Lord not realise that those of us who advocate leaving believe in free trade, which has been a great source of peace, rather than conflict, throughout history? He belongs to the side that wants tariffs.
Lord Adonis
My understanding is that it is the policy of Her Majesty’s Government to put in jeopardy the free trade we currently enjoy in the European Union. If the Government were in favour of free trade, we would stay in the customs union and in the single market. These are straightforward, obvious propositions. The policy of the Government tends only towards reducing free trade with the single biggest set of trading partners that we have at the moment.
Lord Lamont of Lerwick (Con)
How is the noble Lord just about the only person in this House who does not know that the Government have stated over and over and over again that they want a free trade agreement with the European Union?
Lord Adonis
My Lords, the best free trade agreement to have with the European Union is the one that we are currently in. That is patently obvious. When you have an existing set of satisfactory arrangements, the idea that the policy for improving them is to undermine them is total nonsense.
I hope the noble Baroness will give us some assurance that she understands the significant security dimension that is at stake in our leaving the European Union and the importance of having close alignment on trade, not least so as not to weaken our collective security with our European friends and allies.
Lord Stirrup (CB)
My Lords, I will speak briefly to Amendment 12. The issues which it raises are of crucial importance to a post-Brexit UK, but they have only recently begun to achieve any prominence in the Westminster debate and have had very little visibility at all on the wider national stage.
EU Sub-Committee C of your Lordships’ House has recently concluded an inquiry into sanctions policy after Brexit and is currently conducting an inquiry into the UK’s future relationship with the European Union in the fields of security and defence. In both cases, the Government have expressed an intention to act in close concert with our European partners—the Government; not the movers of this amendment—but they have not so far explained how this is to be done.
There are some very clear difficulties. The EU’s policy regarding specific sanctions regimes and its common security and defence policy are agreed at ministerial level within the Foreign Affairs Council. However, the arguments through which final proposals are hammered out take place at lower levels, in the engine rooms of the EU. If one is not present in the engine rooms, one has no influence over the formulation of policy proposals. This means that if the UK wishes, post Brexit, to act in concert with the EU in particular sanctions matters, or if it wishes to participate in common security and defence missions—for both of which it has expressed some enthusiasm—it risks having to do so on the EU’s terms. It would have to do so having had no input to the formulation of policy, and with little or no input to subsequent strategic direction. This is not a position with which I, for one, would feel very comfortable.
The question, therefore, is: what arrangement can the UK reach with the EU that would allow it a suitable degree of influence in these matters? Why should the EU be interested in such an arrangement at all? Perhaps because in those areas in particular, the UK brings capabilities which, in scale and nature, are of an order that few, if any, other European countries possess. However, that does not alter the fact that a non-EU member is unlikely to be given the kind of locus in decision-making that is available to a member. The position of current non-members that align with the EU in these matters is not one that, in my view, would be appropriate for the UK. We need to argue for a separate, tailored arrangement.
Sanctions policy and common security and defence missions are, of course, offshoots of wider foreign policy. If we wish to have a close relationship with the EU in these specific areas, then we will need some mechanism for discussing and agreeing with it in advance the wider international issues and objectives involved. We need an architecture that brings the UK and the EU together to formulate foreign policy in pursuit of shared objectives, and that places UK personnel in those engine rooms of the Union where the specific proposals on individual issues are debated and evolve. We need to agree a modus vivendi for these people that protects the status of EU members while providing for outcomes that are in the best interests of the Union and ourselves. That is a very tall order, and all the more reason, then, for pursuing such an outcome much more vigorously and urgently than has been the case so far.
Amendment 12, and indeed several associated amendments, calls for such arrangements to be not just negotiated but approved by both Houses of Parliament before the provisions of the current Bill are implemented. I do not go so far: I do not believe that the amendments as set out should be agreed. However, I do believe that they provide welcome exposure to issues that are of crucial importance to this nation, that have been largely ignored for far too long and that should at last be accorded the priority they deserve. I hope that the Government will now act accordingly.
Lord Campbell of Pittenweem (LD)
My Lords, it is always a pleasure to follow the noble and gallant Lord, Lord Stirrup, who speaks with great clarity and directness.
It may surprise the noble Baroness, Lady Deech, when I say that I have some sympathy for her in putting forward the notion that the European Union has not really paid up sufficiently for its defence. One of the so-called advantages of President Trump’s arrival and his apparent dismissal of NATO has been to cause a much greater degree of realism. The old arguments about burden sharing now take a very practical effect, and NATO countries have agreed on a minimum of 2% of GDP. As far as I can see, all NATO countries are now moving, as far as they can and as quickly as they are able, towards reaching that level.
I support the amendment moved so ably by my noble friend Lord Wallace of Saltaire. I have one advantage over him—as indeed does the noble Lord, Lord Kerr of Kinlochard. We were both present at the Munich Security Conference and heard how the speech was delivered, as much as understanding the content. It was an interesting speech in this sense. The first half was exemplary. The Prime Minister extolled the virtues of the existing security arrangements in Europe and rightly pointed to her role in continuing to ensure that the United Kingdom remained a participant in the application of the European arrest warrant and an active member of Europol when, on the Back Benches of the other place while she was Home Secretary, quite a lot of people in her own party would have departed from both these positions without a backward thought.
Munich is regarded, perhaps over-grandly, as the Davos of defence, and there is no doubt that the Prime Minister’s speech got pretty substantial billing. That is why I and many others found the second half so disappointing, provoking as it did an American listener—whom I believe to have had Republican sympathies—to say, “Where’s the beef?”. The truth is that the Prime Minister had nothing of substance to say in addition to the paper that was published by the Government last September.
There was no hectoring from the Prime Minister, but there was certainly a degree of lecturing. In a sense, what she said can be summed up as: the security regime of the European Union is extremely good, but we are leaving it, we want you to help us replace it with a treaty, and, if you do not agree to what we want—and here is the lecturing to which I referred—you will bear the responsibility. That is hardly the way to win friends and influence people in a gathering of experts and people with enormous experience in the realms of security and defence.
There was one element of the Prime Minister’s speech that has not, so far, received sufficient consideration. She said that,
“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.
I thought that the whole purpose of Brexit was to have nothing to do with the European Court of Justice. If that is not now the Government’s position, it might be argued that the door of the ECJ has been opened, if only slightly. Perhaps it was too Delphic a sentence to attach much significance to, but it has not been the subject of further explanation.
As has already been hinted at, the consequence of leaving is that the United Kingdom will become, in European Union terms, a third country. That is relevant to the issue of participation in Europol and the European arrest warrant. It raises a number of questions—some of which are being legally disputed—about whether or not the kind of arrangement the Government appear to wish to achieve would necessarily involve the role of the European Court of Justice. There are strong arguments on both sides, but the matter remains uncertain.
Before I move on to the question of defence, perhaps I may make one last point on security. Everything in these debates seems to end up around Ireland in some way or another. Ireland is a foreign policy issue because the treaty is an international treaty lodged with the United Nations—and it is also an issue to which we must have regard in considering the question of security. As I understand it, the Government are considering the creation of a virtual border based on electronic means. At the same time, they are telling us that cybercrime is on the rise and is one of the principal issues which may have an impact on our security. If people can get inside the computer system of the Pentagon, I doubt they will find it too difficult to get inside any electronic border that we may create between Northern Ireland and the Republic.
On defence, it is quite true—unassailable—that NATO is the bedrock of our defence. But it is also true that in NATO and the European Union there is a more considered determination to provide much more co-operation. The two institutions had their head offices at the same time in Brussels and for years they would not speak to each other. Now, at the very centre of the policies of NATO and the European Union is a determination that there should be a higher degree of co-operation.
There has been discussion about the common defence and security policy but, although it now becomes an important element in the consideration of these matters, no one has yet mentioned PESCO. This is not a junior form of a place where you can buy your groceries but—I have reservations about the language—Permanent Structured Cooperation. Essentially, it is the countries of the European Union concentrating on co-operation on defence matters so as to ensure that collectively they might make a more substantial contribution to NATO. We are not members of PESCO—recently formed—and if we leave the European Union we will cease to be present at meetings of EU Defence Ministers and Foreign Ministers. We will no longer be involved in the decision making of the common defence and security policy. As a third party, our participation in operations will be at the discretion of the other member states. I see that as a highly deficient alternative to what we presently enjoy.
The security and defence consequences of our departure, as has been pointed out, were never properly discussed—any more than the political consequences. But this evening we are concerned with security and defence and there needs to be clarity. If the noble and gallant Lord, Lord Stirrup, had any responsibility for it, I am sure that we would have clarity. The reason there is no clarity is that no decisions have been made. That is why, when the Prime Minister at Munich said that this was an urgent matter and we must get on with it, it did not receive the kind of ready welcome she might have expected.
The amendment is essential if we are to cause—to force, if you like—the Government to come clean on what their proposals are: to go beyond the document published last September and to set them out in detail. It is a matter on which the European Union is anxious to have detail and I see no reason why it should not be public rather than private. That is what the amendment is designed to achieve and why it should be supported.
Lord Kerr of Kinlochard (CB)
My Lords, I agree with the assessment of the noble Lord, Lord Campbell of Pittenweem, of the Prime Minister’s speech in Munich—it is exactly right—but he forgot one thing: at least the Prime Minister did not set out to insult the conference as the Foreign Secretary had the year before. Things are getting a lot better.
I rise to support Amendments 12 and 185 and to say why I cannot support Amendment 166 and therefore Amendments 164 and 165. Amendment 166 states that we should remain in the Foreign Affairs Council after we have left the European Union. We have to be realistic—that is not possible. If we decide to leave the European Union, we will not have a seat in any of the councils of the European Union. That is a fact. We may be able to negotiate some kind of seat in the directing bodies of agencies; if we are operating alongside the European Union in, say, a defence deployment, we may be able to arrange some joint command structure for that particular operation, but the direction of common foreign, security and defence policies and PESCO will be set by the 27 and we will have no say in the decisions they take. This, I fear, is undeniable.
Lord Patten of Barnes (Con)
Will the noble Lord concede that at least European Ministers after they have had their discussions and made their decisions will be sure to tell us afterwards what they had decided?
Lord Kerr of Kinlochard
I suspect we will find out. To me personally, this is an extremely sad moment. When I was ambassador to the European Union I found that the things I was allowed to suggest as policy prescriptions were taken seriously in Brussels, partly because it was assumed that if the EU followed the British prescription, the British would ensure that the Americans came in behind it. When I was ambassador in Washington I found the same. Access to and influence on the President was a function partly of the perception that, on a foreign policy issue, the British could call the shots in Brussels.
I am glad that this discussion started with a tribute to Lord Hurd of Westwell, who was the exemplar of how to handle common foreign and security policy. I am glad too that it started also with a tribute to Lord Carrington. The original EPC was, in many ways, a British construct. CFSP as it emerged, with the strong support of the Healeys and the Callaghans, was Douglas Hurd’s construct. The European External Action Service was a British proposal. We punched more than our weight but we have to accept that when we leave the European Union, if we do, that is all gone and we should not pretend that we will have the same influence from outside. What should we do?
Lord Cavendish of Furness (Con)
Can the noble Lord explain to us why it is not in the interests of our European partners—100% in their interests—to co-operate as we have always co-operated before?
Lord Kerr of Kinlochard
I am coming to that. I agree entirely that co-operation is in everyone’s interests. This is one of the areas of negotiation where we are not talking about a zero-sum game; rather, we are talking about a common interest, so I agree with the noble Lord. The point I am making is that we are in the next room. We are not in the room where the decisions are taken. We need an offer and an architecture for the next room. We need to come forward very soon and say, “We are prepared to consult on everything in the area of the common foreign and security policy. We are prepared to consult before every great debate at the United Nations. We would like to consult about every conflict area where Europe should have a view and possibly a presence. We would like to go on contributing our analysis and our intelligence. We would like you, o European Union, to build an annex to the Council—the room next door where we, who we hope will be your closest partner in co-operation on foreign policy, will be consulted by you and will consult you”.
A moment ago the noble Lord, Lord Liddle, made the point that the timing is very important. If we leave the European Union in March 2019, we will leave the Council and there will be no such structure in existence. I should think that something will be invented in the end, but there will be a period of hiatus when we will do the best we can. It would be much better if the United Kingdom were now to put forward an offer and an architecture. It would be much better if there had been a third section to the Prime Minister’s speech in Munich in which she had said, “This is how we envisage it working”. I do not see, particularly on the common foreign and security policy, why we should leave it to the European Commission. There is no great expertise on this in the Commission. It seems that it would have been better on a number of the dossiers in this negotiation if we had actually decided to play at home rather than play on their turf. It would have been better if on every issue we had not waited for the other side to make a proposal.
This is the locus classicus. This is the area of our greatest reputation in Europe. We invented the existing structures in this area, which we are now going to walk away from. This is the area par excellence where the other countries would like to co-operate with us. Why do we not put forward a proposal now? That is why I can support very happily Amendments 12 and 185, but I fear that there is no point in pretending that we can remain, on particular issues, a member of the club. We will have left the club, so the best we can do is try to be its closest partner on the common foreign and security policy.
The Earl of Sandwich (CB)
My Lords, following on from what my noble friend has just said, I should like to ask a favour of the Minister. I am not going to make a speech because I had my chance at Second Reading. My request is that she will respond to the question of international development. The noble Lord, Lord Wallace of Saltaire, mentioned it, but it was not in his amendment. However, it is very connected. I am thinking in particular of Kosovo at the moment as an example of the bridge between security, defence and international development. It is still going on. At this moment the Prime Minister of Kosovo is in the House of Commons seeking our support in the context of the European Union, of which we are still a member. This is something that is happening now. I hope that the Minister can respond on that subject and I will probably table an amendment at the next stage.
The Earl of Listowel (CB)
My Lords, we will come to the issue of children’s rights later in the Bill: the right to education, the right to contact with both parents and the right to rehabilitation from abuse and torture. While listening to the debate I recalled my mother’s experience of losing her younger brother when he was one or two years of age. They were in an air raid shelter that was cold and wet. He contracted, I think, meningitis. I was also thinking of the Anna Freud National Centre for Children and Families, which is a centre of excellence for helping children and young people. Originally it was known as the Hampstead War Nurseries. It was set up by Anna Freud during the Second World War to care for children dealing with the trauma of bereavement as a result of losing their parents in war. I hardly need to say to your Lordships that this is a very important matter. We need only to look at what is happening to children in Syria, so we must take the most constructive and proactive course possible.
We can keep this country safe, but other countries rely on our strength to keep them safe and secure, and help their children to lead stable and secure lives. I am sure that the Minister will want to make a constructive response to this debate and I hope that she will be as sympathetic as possible to the concerns raised.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will be brief because most of the points have been made. I am grateful to the noble Lords who tabled this amendment and have thus ensured that this important issue is being discussed today. As has been said, the Prime Minister’s speech in Munich did rehearse the case that,
“our security at home is best advanced through global cooperation, working with institutions that support that, including the EU”.
We also had a welcome reminder from my noble friend Lord Adonis of the Prime Minister’s earlier, pre-referendum speech on the same issue. In Munich, she went on to outline her desire for an ambitious post-Brexit EU security relationship, talking about a security treaty as part of the “deep and special partnership” with the EU that she wants to see. However, as we have heard from most speakers in this debate, there was a curious lack of detail, or “beef”, in what she said.
As with last week’s amendments, these issues are integral to how we leave the European Union and indeed to the vote which will take place in this House in due course over the withdrawal deal, with its framework for our future relationship with the EU. As has also been mentioned, there is clearly a relationship between trade and security, as my noble friend Lord Adonis reminded us. I hope, therefore, that when the Minister answers the various points of the debate, she will do so in the spirit of these being an integral part of what this Bill is looking at, which is the method by which we leave the European Union. Given that our role in defence is most probably the main defence power in the EU and the only one already hitting the 2% target, our departure will have a significant impact on the defence and foreign policies of Europe and will therefore affect our other relationships with it.
Indeed, we should be mindful that, while the UK possesses full-spectrum military capability—although a little stretched, as my noble friend Lord Judd reminded us, and no doubt my noble friend Lord West would if he was in his place—and an extensive diplomatic reach across the globe, we should note that our hard and soft power has been greatly enhanced by our membership of the EU. That is why, as we have heard, Mr Callaghan as he was then focused on this and why the last Labour Government helped to launch the common foreign and security policy and the common security and defence policy. So while the Government have rightly indicated that they will seek to continue our participation in, for example, EU missions and interacting with relevant EU bodies, what we need is for the Minister to outline how the Government envisage this happening and on what terms—a point made by the noble and gallant Lord, Lord Stirrup. This is needed with a degree of urgency since, as my noble friend Lord Judd said, there simply cannot be an interregnum or hiatus, to use the words of the noble Lord, Lord Kerr, before something is put in place. We have a year and a month to go.
I will take a moment to pose a different question to the Minister. Given the demands at the weekend by Spain’s Foreign Minister for joint management of Gibraltar’s airport after Brexit, could she confirm that at every step of the way the Government of Gibraltar are being informed and consulted on the Government’s evolving position on these and other issues, and that nothing will be agreed to jeopardise Gibraltar’s future—mindful, of course, of its worries arising from paragraph 24 of the EU’s negotiating mandate?
Baroness Goldie (Con)
My Lords, I thank you all very much indeed for contributing to a genuinely extremely interesting and useful debate. I thank the noble Lord, Lord Adonis, for his very warm words of welcome. I fear that it is inappropriate to say this to someone bearing the name Adonis, but I fear I may be doomed to disappoint him. I will try to deal as best I can with the various points that have been raised.
The Government share with this House the objective of building a close and co-operative relationship with the EU on issues relating to defence and security, as referred to by the noble Lord, Lord Wallace of Saltaire, or to foreign affairs, security and intelligence, as referred to by the noble Lord, Lord Adonis. These are indeed vital matters. The continued security of Europe and of our citizens is paramount to us. It would just not be in our interests to see that co-operation diminish.
The purpose of the Bill is, I suppose, mechanical and rather tedious, but it is a mechanism to try to ensure that the UK statute book continues to function after we leave the EU and that it is not riddled with gaps and holes. That is what this Bill is all about. Amendment 12, as proposed by the noble Lord, Lord Wallace of Saltaire, is about the future relationship with the EU and securing it. That is vital—nobody disputes that—but it is of course inevitably, and I am sorry to use the platitude, subject to the current negotiations. Given that the Government have already committed to providing Parliament with a meaningful vote on any final deal, I respectfully suggest to the noble Lord that perhaps this Bill is not the appropriate forum to raise these concerns. I still think that the debate is an appropriate forum in which to articulate them.
Lord Kerr of Kinlochard
Could the noble Baroness reassure me that there is a negotiation going on on the future relationship between the UK when it has left and the common foreign and security policy of the EU? Is there a negotiation going on? I have the impression that there is not. I was trying to say that we should start one by making a proposal now.
Baroness Goldie
The noble Lord will understand that I am a very lowly mortal and that I am not privy to the detail of the negotiations. What is clear from what the Prime Minister has said is—just as the noble Lord, Lord Adonis, very helpfully identified—how extremely important these issues are to the Prime Minister. I am absolutely certain that, within the holistic forum of the negotiations, these matters are certainly being discussed and looked at.
Baroness Hayter of Kentish Town
The noble Baroness has said, and it keeps being implied, that these are not issues for this Bill. I am sure that she knows the Bill far better than I, having read it more often, but I remind her that on page 7, Clause 9(1) says that the use of regulations is,
“subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the United Kingdom from the European Union”.
We know that, under Article 50, those final terms of withdrawal have to include the framework for our future relationship, which is almost bound to affect and comment on issues such as this. Although on many occasions Ministers may not want to answer, there is reference in the Bill to the withdrawal deal and surely it is appropriate for us to bring to the Government anything that might be in that.
Baroness Goldie
Yes. My position that I advance to the noble Baroness—I was just going to come to this in my speech—is that there will be a subsequent opportunity for Parliament to look closely at whatever the withdrawal agreement is and its implementation. In addition, the Government have committed already to providing Parliament a vote on the final deal. Parliament will be given the opportunity to scrutinise the future relationship between the UK and the EU. That is why I submit that the Bill before us is essentially of a mechanical nature. That is what it is: it is trying to ensure, as we leave the EU, that we make sense of transferring the necessary laws, enactments and regulations, whatever they may be, into the statute book of the United Kingdom. The noble Baroness is quite correct that Parliament should have that right to scrutiny, of understanding what the agreement is and questioning how the implementation will take place; I am pointing out that these opportunities will be there. Parliament will not be denied that opportunity.
Lord Campbell of Pittenweem
Will the noble Baroness give way? I shall be very quick.
Baroness Goldie
My Lords, I would be happy to give way later, but I am quite anxious to make progress. Important points have been raised. I want to try to keep the theme running as to how I will respond to them.
The noble Lord, Lord Adonis, referred to the Prime Minister’s speech in Munich. She gave a very important speech because she detailed further how the UK envisages future collaboration with the EU on internal and external security. She reiterated our unconditional commitment to European security. I turn to a very important point raised by the noble Lord, Lord Hannay, and echoed by the noble Lord, Lord Adonis. I say without equivocation that we remain absolutely committed to ensuring European security and developing this deep and special partnership. Our desire for a close working relationship on foreign and security policy is not conditional on other areas of the negotiations. I hope that that reassures the noble Lords.
Lord Campbell of Pittenweem
We have, effectively, a willing buyer and a willing seller when it comes to security and defence. Why not take the opportunity of concluding that bargain? It would be much easier to do than, for example, the trade agreements that we hope to deal with in the future.
Baroness Goldie
This is like the fair in Paisley: things coming from one side, interventions coming from the other side and voices from behind me. I am not sure that I entirely agree with the analogy. It is the case that explorations are taking place, if you like, between a buyer and a seller—that is what a negotiation is—but these are sensitive negotiations. I am trying to make clear in the course of my speech—perhaps if I can make a little progress it might become more apparent—just how committed the Government are to addressing the issues raised by your Lordships. They are issues of real concern and are certainly of vital importance. That is because our shared values—those values between the United Kingdom and the EU—are manifest and universally acknowledged. I hope that universal acknowledgement understands that we do not need the text of the Bill to explain to everyone that it is there. I hope that everything that we have done as a member of the EU and all that we are doing in the conduct of the negotiations, particularly as made clear by the Prime Minister’s remarks, will reassure all just how serious we are about these matters.
We have proposed a bold new approach to security co-operation with the EU, including a comprehensive framework for future security, law enforcement and criminal justice co-operation, and for future co-operation on foreign and security policy. I say to the noble Lord, Lord Wallace of Saltaire, that, as we leave the EU, of course our consultation on the CFSP will change, as it inevitably has to do. With considerable justification, many of your Lordships—the noble Lords, Lord Wallace of Saltaire, Lord Judd, Lord Hannay and Lord Campbell, my noble friend Lord Hailsham and the noble Baroness, Lady Hayter—were anxious to get some idea of what the post-Brexit position would look like in relation to these issues of critical importance.
I say by way of preface to all of this that, as a Government Whip for the Foreign and Commonwealth Office and for Defence, I have regularly found myself at this Dispatch Box outlining positions on foreign affairs and defence which are UK derived. They are positions that we have reached by ourselves and as a consequence of our NATO membership—which is very important, as acknowledged by the noble Lord, Lord Campbell—as part of our P5 position on the United Nations Security Council or as a consequence of discussions with our global allies. We do that now on our own account. I make that point to explain that, while we value the relationship that we have had with the various agencies in the EU, there is another territory out there that is also extremely important to the future security not just of this country and the EU but of our global partners.
Lord Browne of Ladyton (Lab)
It is crucial that we understand that the Prime Minister proposed in Munich a treaty for what was referred to as “internal security”, which is internal security within the European Union. It would be a treaty which had plenty of detail and clearly reflected co-operation with the existing institutions of the European Union—that is where we get into discussion about the European Court of Justice. But for external security, there would be co-operation. Why this difference? Why a treaty for internal security, and why just co-operation on global security, with a clear indication that we would leave the European Union’s foreign policy on the date of Brexit?
Baroness Goldie
There seems to be an inescapable distinction between these two positions. In relation to the internal security of the EU, there can be a meaningful discussion about what we can do to assist and support that, but when it comes to external security and just as I have outlined, there is a multiplicity of other positions, agencies, alliances, relationships and partnerships which govern what we do. I can see that what would be appropriate to deal with one scenario might not be appropriate to deal with another, but I say that without prejudice to whatever the negotiations are currently covering. I am not privy to the detail of the negotiations, but there seems already to be evidence that constructive dialogue is taking place. From what we have heard from the Prime Minister and her absolute and unqualified commitment to security and to trying to embark on as close and harmonious a relationship as we can get with the EU post Brexit, there is no doubt about her conviction on these matters.
We have to work as closely as we can with the EU post Brexit. The Prime Minister has made that crystal clear and is right to do so. The UK is not without influence. As the noble Baroness, Lady Deech, noted, it enjoys a status in relation to these matters—I refer again to our P5 position on the United Nations Security Council. One area in which people have been sceptical is in their asking why the UK should be treated differently from other third-country partners as we try to negotiate new arrangements with the EU. Taskforce 50 noted in its presentation on external security that the EU would lose one of its two permanent members of the Security Council when the UK leaves. Taskforce 50 recognises that this could merit a specific dialogue and consultation mechanism with the UK.
Perhaps I may return to a very legitimate question posed by a number of your Lordships: what is all this going to look like and is there any sort of shape to it?
Lord Davies of Stamford (Lab)
The Minister has just mentioned the matter of our withdrawing from the permanent membership of the United Nations Security Council and that our withdrawing from the European Union will mean that there will be only one EU permanent member. Will that not be a wonderful day for France, which will be able to speak in the councils of the United Nations as representing the EU as a whole, and will no doubt do so?
Baroness Goldie
I am sorry, I think that I may have been misunderstood. I did not talk about the United Kingdom withdrawing from being a P5 member of the United Nations Security Council. I said that when we withdraw from the EU, the EU will be left with only one member, which is France. The position of the UK in that respect is powerful and influential, and I am pointing out that Taskforce 50 thought that it could certainly merit a specific dialogue and consultation mechanism with the UK.
It is pretty clear, particularly when there are many in this Chamber much more knowledgeable than I am about these important and technical matters, that to underpin our future co-operation we will seek regular institutional engagements, including specific arrangements on secondments and information sharing—that would seem to be at the heart of constructing any relationship. The nature of the threats that we face mean that we should seek a framework that could be scaled up in times of crisis. One needs a relationship which can be tested against need if situations arise when the partnership, agreement or whatever it is to be has to swing into action.
The United Kingdom intelligence community already works closely with other members of the EU. The heads of the German BND, the French DGSE and the UK secret intelligence services issued a joint statement at the Munich security conference committing to close co-operation and stating that cross-border information sharing must be taken forward on themes such as international terrorism, illegal migration and proliferation of cyberattacks after the UK leaves the EU. We want to do all that. I am trying to explain to your Lordships that there is straw with which to make my bricks. I am not just clutching it out of the air; I am trying to indicate that there are substantive matters that can be the foundation for something very firm and enduring.
Perhaps I may try to deal with one or two particular points raised. The noble and gallant Lord, Lord Stirrup, raised the important matter of sanctions. We have just passed a sanctions Bill which will provide the UK with the powers to implement our own independent sanctions regime, but we would delay these powers coming into force if we could agree arrangements with the EU concerning sanctions co-operation during the implementation period. On sanctions, as with co-operation on foreign and security policy more generally, we seek to consult and develop a co-ordinated approach before decisions are made. To enable such co-operation, we will need consultation mechanisms; for example, regular sanctions dialogues. I was very struck by the contribution from the noble Earl, Lord Listowel, who raised real and poignant issues. Nobody would disagree with that, which underlines why we need close co-operation on these vital issues.
On Amendments 164 and 166 tabled by the noble Lord, Lord Adonis, the Political and Security Committee and the Foreign Affairs Council are of course bodies of the EU. They are attended by member states and are intended for the development of the EU’s policy.
We are leaving the European Union and are not seeking to participate in these meetings on the same basis as EU members. The noble Lord, Lord Kerr of Kinlochard, identified these problems. But, given our historic ties and shared values, we are likely to continue sharing the same goals and we will therefore want to co-operate closely on a common foreign policy. The noble Lord, Lord Kerr, said very cogently that we are not talking about a zero-sum game. It was racy language for the noble Lord, Lord Kerr, but I totally agree with him. We are not talking about a zero-sum game: well established and good relationships already exist which will not just evaporate. We will seek to bind these and tie them in to our new post-Brexit relationship. We want to establish an enhanced partnership with the EU that reflects the unique position of the UK. This will include close consultation in a variety of fora. Attending the Political and Security Committee and the Foreign Affairs Council, however, is not the only means by which we can achieve that.
Amendment 165 was also tabled by the noble Lord, Lord Adonis. This amendment seeks to bind the UK—“bind” is the important word—to follow the EU’s foreign policy objectives regardless of our own views. This would limit the UK’s ability to respond independently to developments in the world post Brexit, and such a restriction would be profoundly undesirable. Of course, on many foreign policy issues the UK and EU will continue to share the same goals and will want to co-operate closely, whether that is by continuing to support the Middle East peace process or by tackling the threat of piracy off the Horn of Africa—but, again, I do not think we need texts and primary legislation to underline what are already our shared values and beliefs.
Amendment 185 was also tabled by the noble Lord, Lord Adonis, and refers to the EU Intelligence Analysis Centre. I reiterate the Government’s unconditional commitment to European security. In the exit negotiations we will work closely to ensure that the UK and EU continue to co-operate closely, including through the sharing of information, to safeguard our shared values and to combat common threats, including threats of terrorism, organised criminal groups and hostile state actors. The precise modalities and arrangements to enable this partnership will be decided in the negotiations. I do not expect this to satisfy the noble Lords, Lord Adonis and Lord Wallace of Saltaire, but I hope that it will provide them with sufficient reassurance of the Government’s commitment to continue close co-operation with the EU and its agencies and that, in these circumstances, they will see fit not to press their amendments.
I will say in conclusion—I reiterate it because the noble Lord, Lord Hannay, raised the point—that the Government have been clear that the UK remains unconditionally committed to European security. In the exit negotiations we will work to ensure that the UK and EU continue to co-operate closely to safeguard our shared values and to combat common threats, including terrorism. A partnership where we can build on the existing structures and arrangements—because it is not a zero-sum game—to improve processes will enable us to go further to respond to the reality of these. I hope that this will provide your Lordships with sufficient reassurance of the Government’s commitment to continue close co-operation with the EU and its agencies.
Lord Kerr of Kinlochard
Before the Minister sits down, perhaps I may say to her that she will have responded to this debate admirably if she can think of a way of conveying to the Foreign Secretary—it might be relatively easy since he is here—that there are at least some in this House who believe that the right way of advancing the dossier of co-operation with the EU that we have left on a common foreign and security policy would be for us to put forward a draft treaty now—not waiting for the other side, not waiting for the Commission, the expertise of which is not on foreign policy, but putting forward a treaty drafted by the Foreign Secretary, with all his detailed, forensic skills.
Lord Wallace of Saltaire
My Lords, of course I shall withdraw the amendment, but I shall make a couple of comments. It is clear that we will have to return to this at the next stage if the Government do not provide any more detail. First, on the role of the Lords in considering Bills such as this, the noble Baroness said—as the noble Lord, Lord Callanan, said on a couple of occasions—that this is a largely mechanical Bill. Well, it is a mechanical Bill that gives very wide discretion to the Government to design our future relationship with our most important security, political and economic partners. So a House that concerns itself not with whether the principle of the Bill is correct but with the detail is entirely in accord with its role to ask for detail on what that discretion will be used for.
It would be easier to accept that this is a mechanical Bill and not to raise these difficult questions one after another if we had some confidence that the Government actually know what they want in these areas. Part of our problem is that many of us have no such confidence. I do not think that the Foreign Secretary has a clue about what he wants by way of a future relationship with Europe: I doubt whether he has really thought about it for more than three or four minutes. He is too busy thinking about the next anecdote he is going to tell or the next joke he is going to make. His speech last week was a disgrace for a Foreign Secretary: the Prime Minister’s was of an entirely different quality. For a Conservative Party that has always prided itself on its commitment to a strong foreign policy, it must be a real embarrassment that we still have someone in place who is incapable of giving a serious speech on foreign policy. So this House is fulfilling its proper role in asking for detail on the implications of the Bill.
Secondly, I take up what the noble and gallant Lord, Lord Stirrup, said: the engine room is important.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I think it is against the rules and the spirit of this Chamber to criticise a Member of another place by name. I hope that the noble Lord will see fit to moderate his comments accordingly.
Lord Wallace of Saltaire
I apologise for being perhaps a little stronger than I should have been in this respect. On the engine room—I wanted to return to the noble Earl, Lord Howe, on this—much of the business of multilateral organisations, be it NATO or the EU, is done in working groups and committees. The common foreign and security policy structure has some 40 working groups and committees, including a military committee that has been chaired by a British officer. If we are not in any of those working groups, we will miss out on formulating policy.
There are other details that matter a great deal. I remember the noble Earl, Lord Howe, saying on one occasion, when some of us were following the noble Lord, Lord West, and asking, “Where are you going to find the frigates to make up the carrier groups that we need?” The noble Earl said, if I remember correctly, “They do not necessarily have to be British frigates”. I took him as meaning that they might be Dutch, French, Belgian or whatever. Well, that also needs a certain structure, with certain training mechanisms and certain multilateral commands.
Lord Wallace of Saltaire
The noble Lord may not know, but, as I have quoted, we have been involved in some 15 EU operations, some of which have been naval. Had he visited Operation Atalanta at Northwood, he would have known that that is an entirely naval operation, commanded by the British with ships from a number of different nations. Operation Sophia in the Mediterranean has also involved British frigates working with others on the whole question of migration. So some operations are NATO, some are the EU.
I have said quite enough. Of course I am going to withdraw, but we, along with many others, do not know enough about this area to be able to give the confidence to the Government that we want—that is the whole problem with this “mechanical Bill”. I beg leave to withdraw the amendment.
Baroness Ludford
“( ) Regulations bringing into force subsection (1) may not be made until the Secretary of State has laid before both Houses of Parliament procedures agreed with the EU for continued UK participation in measures to promote internal security, police cooperation and counter-terrorism and these procedures have been approved by a resolution of each House of Parliament.”
Baroness Ludford (LD)
My Lords, the Prime Minister’s speech in Munich 10 days ago, which was cited in the previous debate, was encouraging as far as it went. The Prime Minister spoke of wanting to participate in Europol, the Schengen Information System, the European arrest warrant and the European investigation order, which is a sort of European arrest warrant for evidence. But aspiration is not enough. Cross-border co-operation on law enforcement is premised on an assumption that all member states share similar standards of fundamental rights protection. Mutual recognition is rooted in mutual trust. I am afraid that successive British Governments have not really understood this sufficiently and have been more or less reluctant to sign up to the protective measures alongside the measures on police powers.
It is really strange that the UK has had such an ambivalent relationship with EU justice and home affairs over the past 20 years because it is possible to say, without being arrogant, that our record on the rule of law and the quality of our lawyers, judges and police stand comparison with any other in Europe and should have put us at the centre of EU developments in civil as well as criminal justice. But successive Governments have insisted on opt-outs and optional rather than full-hearted participation. That has not stopped the merits and value of our weight and experience and our personnel in justice and home affairs being recognised. We have the director of Europol—I think he has been there for the best part of 10 years—Rob Wainwright, who is on the brink of retiring. Of course, the European Commissioner for Security, Sir Julian King, is British. Two former presidents of Eurojust are British. That is the body of prosecutors which ensures that cross-border investigations and prosecutions are carried out smoothly. Indeed, the noble and learned Lord, Lord Thomas of Cwmgiedd, was president of the European Network of Councils for the Judiciary—the network of judges—which supports and encourages an independent and qualified judiciary.
You cannot do cross-border co-operation unilaterally. It has to be a reciprocal arrangement based on legal agreements which are enforceable in respecting individual rights as well as the rights of national authorities. There are two foundations of mutual trust within the EU: first, the possibility of recourse to the European Court of Justice to ensure a level playing field in the application of EU law; and, secondly, the rights and principles in the European Charter of Fundamental Rights, the right to protection of personal data being of particular relevance in this context.
On the resolution of legal disagreements, in her Munich speech the Prime Minister proposed two principles: first, respect for the sovereignty of the UK’s legal order; and, secondly, respect for the remit of the European Court of Justice, at least when participating in EU agencies. I think there is a lot of head-scratching about how those two principles are going to be reconciled. I am hopeful that the Minister will be able to explain to me precisely how that is going to work. Can he also flesh out what a security treaty would look like in incorporating what the Prime Minister called a mechanism for,
“independent dispute resolution … in which both sides can have the necessary confidence”?
How will the full exchange of data be secured under the auspices of such a treaty? About three years ago Denmark voted to leave Europol. Since then, it has negotiated very limited access to data in Europol—and it is a full member of the EU, the Schengen area, the European Court of Justice and the Charter of Fundamental Rights. What makes the Government think we will get better access to Europol than Denmark? We might well get observer status but we will have no vote on the work programme or the direction of Europol’s work.
We will discuss the Charter of Fundamental Rights fully later but it is highly relevant to the exchange of data so I must mention it now. The relevance of the Charter of Fundamental Rights is why the trade body of the British tech industry, techUK, has urged the retention of the charter in domestic law. It is interested mainly in the commercial exchange of data for the digital economy but the same applies to the exchange of personal data for the purposes of law enforcement. The tech sector is very well aware of the long-running problems over transatlantic data transfers after the Snowden revelations in 2013, leading to years of political wrangling and litigation, including the ECJ blocking the so-called safe harbour agreement before the privacy shield was agreed—and there had to be changes in US data protection law to achieve that.
Whether or not the UK seeks a formal adequacy decision in the context of our future trade and security relationship, we can be sure that there will be a wide and deep assessment of data protection in this country, not least by the European Parliament, and the possible invalidation by the ECJ of any agreement which fails fully to adhere to EU standards. It seems ill judged for the Government to prejudice that trade and security relationship with the EU by jettisoning the charter. The fact that they insisted on weakening the privacy protection for immigration data in the Data Protection Bill may also turn out to be unwise.
The Prime Minister wanted continued participation in the European arrest warrant and the European investigation order. The extradition agreement with Norway and Iceland took 13 years to negotiate, is still not in force three years after agreement, and does not include surrender of own nationals. How do the Government propose to do better than Norway and Iceland? The 1957 Council of Europe convention would be a step backwards in extradition practice and in any case would require not only the UK but individual European countries to change their legislation. What prospect is there of them doing that?
On the European arrest warrant, the Government will of course be aware that the Irish courts have refused the extradition of a person to the UK and have referred the case to the Luxembourg court because they are afraid that if they return someone to the UK and they are in detention beyond March next year, they will not get the protection of the European Charter of Fundamental Rights. So it is already affecting extradition co-operation. The European investigation order—the other measure the Prime Minister mentioned—has been implemented in UK law, as I have had cause to raise with the Government, by substituting reference to the charter with a reference to the European Convention on Human Rights, which of course is not an EU measure. That seems a rather petty thing to do and, again, does not seem very sensible if it is a flagship measure mentioned by the Prime Minister but it has not been properly implemented in UK law.
To conclude, can the Government tell us, given their limited acceptance of ECJ jurisdiction and their rejection of the charter, exactly what terms—and under what structures, as was just mentioned—they expect to get in a security treaty, and will they submit a draft for our enlightenment before too long? I beg to move.
Lord Cormack (Con)
My Lords, I added my name to the noble Baroness’s amendment for two reasons. The second was that I was encouraged by what the Prime Minister said in Munich and I very much hope that we are going to have the closest possible co-operation for all our security. But the first reason that I put my name on the amendment was that I had the honour, until the unfortunate general election of last year, of serving on the EU Home Affairs Sub-Committee of this House. After the general election I was summarily dismissed because I had not voted with the Government during our debates on the triggering Bill last spring. But there we are: it did not shut me up and certainly will not shut me up tonight because we took evidence from Rob Wainwright, the head of Interpol.
On that committee, I used to sit next to Lord Condon. I am very sorry that he has retired from your Lordships’ House because he made an extremely important contribution, based on vast knowledge. I was impressed by his pride in what Rob Wainwright had achieved as a Brit leading that extremely important organisation. I was impressed, too, by the searching questions that Lord Condon asked of not only Rob Wainwright but a number of other expert witnesses who came before us. The conclusion that one had to come to after those various evidence sessions was that the measure of success of our negotiations would be determined by how close we had come to replicating what already existed.
There is no point in rehearsing all my misgivings about where we are, because we are where we are. But I hope that my noble friend on the Front Bench can reassure the Committee that the Prime Minister, following her Munich speech, really is committed to coming to close arrangements with our European friends and neighbours to ensure that the measure of security which we enjoy—and which the people of this country enjoy—will not be damaged by an imperfect relationship with Interpol. I would like to see a proper membership of Interpol and, frankly, I am not persuaded that it could not happen. I hope it will because what matters more than anything else to the people of our country, almost a year away from the terrorist outrage which hit us here in Westminster last March, is that they feel secure. That feeling of security is encouraged if they know that there is the closest possible co-operation and exchange of information with our European friends and neighbours. One other thing that came out during our evidence sessions was the very real importance of the European arrest warrant. I hope that in building upon what the Prime Minister said in Munich, we can ensure that there is again a similar arrangement after we leave the European Union.
Those were the reasons why put I my name to the amendment and I am glad to support it. I do not want to sound offensive in any way because I have a high regard for my noble friend, who has a very difficult job to do, but I hope we will have a reply to this debate of real substance, in view of what the Prime Minister said in Munich a couple of weeks ago.
Lord Hannay of Chiswick
My Lords, perhaps I might carry on after the noble Lord, Lord Cormack, because I too served on your Lordships’ Home Affairs Sub-Committee. I chaired it some years ago, when we were going through what could be described as a dry run for our debate tonight. That dry run was on protocol 36, the opting out and then opting back in; the current Prime Minister played a notably positive role in that, particularly so far as the European arrest warrant was concerned.
The first point, which cannot be made too often and which I hope the Minister will recognise, is that in this area of EU policy there is no safety net. It is not like trade, where the WTO rules are, I would argue, inadequate but nevertheless are there as a safety net if all else fails. There is no safety net for justice and home affairs. If we do not make watertight arrangements by 29 March next year, we will be walking on thin air. On this, I would like to ask a specific question: are the Government confident that the arrangements for a standstill transition or implementation—whatever they like to call the period that immediately follows 29 March 2019—will be applicable to these justice and home affairs matters when we are a third country? It would be good to have that answered.
Baroness Kennedy of The Shaws (Lab)
My Lords, there cannot be anyone in this House who does not agree that the security of this country is vital and that collaboration in fighting crime is really important. We have to remember that international cross-border crime is one of the real challenges that we face. It has been made easier because of developments in recent times, such as the electronic transfer of money, the ease of travel and the whole business of communicating by cell phones, email and the like. Just as that makes it possible for us to trade, it makes it much more possible for illicit trades to take place, too, so international cross-border crime is something that we really have to contend with in a way that was not the case 50 years ago.
Countering cross-border serious crime, whether it is terrorism, the transportation of drugs, the importation of firearms or all manner of illicit products or trading in human beings, involves incredibly important collaboration and co-operation, so like other noble Lords I welcome the fact that the right noises are being made about future co-operation in policing and security matters, particularly because of the real complexity of this stuff. I was with a group of recently retired senior counterterrorism police officers and someone who was about to retire last Thursday talked about the invaluable nature of these collaborations and the ways in which the European arrest warrant, Eurojust and the things on the list that was read out by the noble Lord, Lord Hannay, are so vital in countering this really serious level of crime. If you can penetrate the dark web, it shows just how active this criminality is.
I strongly support Amendment 13, tabled by the noble Baroness, Lady Ludford, and other noble Lords, but it raises an issue. The issue is that, if we are going to use something like the European arrest warrant, it involves something different from the need for arbitration or for some supranational tribunal to deal with trading disputes, as the noble Lord, Lord Hannay, said. This is of a different order. When we are dealing with something like the European arrest warrant, we are talking about the liberty of the subject. We are talking about people being arrested, kept in custody and transported from one place to another. The rights of the individual there are so significant that we have to have a court with highly trained judges at the apex of any legal system because people resist the possibility of being transferred for criminal trials to proceed.
I want to reiterate what the noble Lord, Lord Hannay, said about the old days. It would be a frequent occurrence that attempts would be made to extradite people and it took years. People were able to resist extradition for years. I see the noble Lord, Lord Thomas of Gresford, in his place. Once, many years ago, he led me in a case that involved lengthy extraditions and had gone on for years. The arrival of the arrest warrant put paid to that. The difference it has made has been considerable. The UK has extradited 1,000 people to other parts of Europe to be prosecuted for serious crimes and has received some 200 individuals from other places for serious crimes. I urge the Committee to think through the consequences of that. We need to have a court at the apex of this, and the court that is sought by the rest of Europe is the European Court of Justice, which already exists and knows and understands the nature of these processes. What do we do? Do we create some new court which has all the same powers and just give it a different name in order to appease those who do not like the European Court of Justice, or do we recognise that for this area there has to be the jurisdiction of the European Court of Justice?
A number of amendments in this group are tabled in my name, and I want to refer the Committee to them. Amendment 99 relates to the protection of “protected persons”. This may be something that noble Lords are not really aware of, but we adopted the European protection order directive in 2014. This relates to difficulties which are faced mainly, but not exclusively, by women who are stalked or victimised, often by former partners, and who go to live in other parts of Europe. Across Europe we have developed victim protection orders which involve mutual recognition so that, if someone stalks someone to somewhere else but we have created a protection order in the UK, it can be immediately made effective in another country where someone has pursued the person who is the obsession at the end of their malign intent. Such victim orders are used not just in relation to domestic violence and the stalking that happens in relationships but in relation to other forms of stalking, for example, in witness protection issues or in trafficking. It is an area in which I have particular experience, and these orders are going to be vital in providing protection for people in different jurisdictions. I really hope that, in seeking to create the right kind of regime for us to operate across Europe in relation to these criminal matters, we also protect the victim protection order regime—the European protection order regulations—as well.
The other matter on which I have put forward an amendment, in which I am supported by the noble Lord, Lord Paddick, and my noble friend Lord Judd, relates to justice and home affairs measures. I know it is the Government’s objective that some of these processes continue after departure. We are most concerned that there is a serious understanding of what mutual recognition means. There is some concern being expressed in other parts of Europe that we do not use the terms mutual recognition and harmonisation in quite the way that is intended when it comes to this collaboration on criminal and civil matters. I have spoken about this before in the House. It is about the fact that it is not enough to introduce European law into the UK, as some of these regulations require reciprocity of a very deep kind. It means that we will respect orders made in other countries and that they will respect orders that we have made here.
Think of the difference that it makes to a woman whose family are in Germany and who takes her children there to visit them, but who after a divorce is being harassed and stalked by her previous husband. She can get an order in her local court and know that when she goes to visit her family in Germany, the order will operate there too if she is pursued by her former—abusive and violent—partner. We know that this also happens in relation to matters such as access to children, where people can get maintenance orders in the local court: you can go down to the court in Bromley, get your order and it will be made effective in another country in Europe. It is so important that people do not have to instruct lawyers in other places, when they could ill afford to do so and thereby secure justice in the circumstances they find themselves in.
The mutuality there is of a very deep kind. Just introducing European law into our system and legislating for it will not be enough. What we really require is something that creates a regime that continues what has been established with great care over very many years.
Baroness Massey of Darwen (Lab)
My Lords, Amendment 209, which is in my name, follows directly from the remarks of my noble friend Lady Kennedy, so I thank my noble friend Lord Adonis for allowing me to slightly skip the order.
The amendment echoes the concerns of others, notably the noble Lord, Lord Hannay, and my noble friend Lady Kennedy about the UK’s access to and participation in Eurojust, Europol, ECRIS and the European arrest warrant. This also includes the database of the Schengen Information System II and the European protection order—I think we must have covered them all between us. I want to look at this from the perspective of child protection. This amendment has implications for a huge area that includes child trafficking, child abduction, forced migration, sexual exploitation, criminal proceedings, online abuse and missing children—a long list of concerns, also mentioned by my noble friend and the noble Lord.
Lord Deben (Con)
My Lords, one of the themes that has come through in the debates on many of the amendments so far is that the Government are enthusiastic about where we are, keen on continuing the links and determined that we shall not in any way fall out from those, but unwilling to commit themselves to the obvious solutions. We have heard in this debate tonight an exact repetition of what we have had before.
In other words, some of us are saying that these things were achieved with great difficulty. The European arrest warrant caused enormous argument and could be a really dangerous thing if it were not properly protected by the European Court of Justice. Like everyone else, when I became a Member of your Lordships’ House I was asked what subjects I was particularly going to speak on. The first was the environment, the second was Europe and the third was human rights. Therefore, when the legislation that we are now part of was going through in its various forms, I was very concerned that it was properly protected. However, I was very aware, as is the House, that crime does not know any borders, particularly the type of crime that the noble Baroness, Lady Massey, was talking about.
We need the protection that the warrant gives. When we were kids and we read stories of derring-do, we all knew that the first thing that people would try to do was to get across the channel because then they would be out of the reach of British law, and indeed of the law in many ways. I believe strongly that first of all we have to recognise that what we have we did not get easily and did not arrive simply. To suggest that somehow or other we can produce a different system and call it something else, because that would be convenient to the people who are ill informed enough to want to leave the EU, seems extremely dangerous. We should recognise that this took a lot of doing.
The second point, which has been made very interestingly, is about the nature of mutual recognition. Very often we are divided by not understanding the words that we use. There is an attitude in Britain that suggests that we get it right and other people do not, and therefore they had better do it our way because we know best. That has been our besetting sin throughout the period of our membership of the EU and, if we leave, we will get even worse at it. In other words, we are very keen to teach other people but not frightfully good at learning from them. One of the things that we have learned—I think by accident; certainly not by design—in having to co-operate on these issues is that we have understood much more clearly the problems, difficulties and solutions that others have had in our European home. We have to recognise that understanding mutual recognition is not easy, and the idea that we can suddenly create a different mechanism for doing it is very far-fetched.
On my third point, I have great admiration for the Prime Minister. I do not understand how every morning she wakes up and thinks, “God, I’ve got another day of this”, and deals with some of the people that she has to deal with—I will not list them but we all know which ones I mean. However, it is not good enough to have good intentions and show generalised support. My noble friend who is answering for the Government has given us a great deal of good intentions and noble views but no actual support for real policies and actual determinations. This is not something that we can pass off by merely having good intentions, because it is very hard and we have to be tough about it. We have to say to our friends, “We actually want, and will have, exactly what we have today on these matters because there is no alternative that is better and there is no way that we are going to invent one”, because crime will not wait.
This is a rather important amendment. All it says is that the Government have to move from intentions to reality before they can move. That is not an unreasonable thing for the House which is responsible for our constitution to ask.
I hope that my noble friend is not going to say how important all these things are, how valuable they are, how much the Prime Minister is in favour of them, but that just at the moment, because it is all part of the negotiation, he cannot go further than that. If he does, perhaps for all our debates he might just turn on the recording. That is evidently the answer we are going to have on everything, because that is the answer we have had so far today on everything. If it goes on like this, this House will have to ask whether the Government intend to have a debate or discussion about things that matter, about the future of our nation and our people. Are they going to have a discussion about the things that protect our people, the policing which has to cover areas beyond our borders? Above all, are they going to have a discussion about how this affects Ireland? We have for too long taken for granted the fact that the Irish situation is, at least to a large extent—much less so than the newspapers would have us believe, but still to a large extent—peaceful. We must none of us forget that.
I have to tell my noble friend that it will become increasingly difficult for the Government to uphold their position unless they are prepared to take seriously this House’s demand that they tell us what they want. How can you negotiate with people unless you can say very clearly what you want on crucial issues, and what could be a more crucial issue than this?
Lord Judd
My Lords, at the end of all these proceedings, some months down the road, there will be a vote in Parliament. At that time, it will be essential that we know exactly what we are voting for. That is why the speech by the noble Lord, Lord Deben, is so important. There is a fundamental difference between good intentions and concrete policy, there to be implemented. As in our previous debate, the issues are too big; there is no room for an interregnum or period of doubt. We must be able to move from what we have to what is necessary overnight. We must have firm policies and firm decisions that follow from them.
I served on the Home Affairs Committee under the chairmanship of the noble Lord, Lord Hannay, when we were having that dry run, and very interesting it was, too. What I found very telling was that virtually every witness working in the field, when the question, “Will your work become more difficult if we leave the European Union than it is at the moment?” was put directly, said unequivocally yes, they needed the European Union to meet the challenge of the job. Forgive me if I repeat myself, but it is terribly important. Crime is international; it does not recognise frontiers. That is true of trafficking and, as my noble friend said, of drugs. It is true of terrorism. These things do not know national frontiers. Therefore, you must co-operate and work closely with others who face the same difficulties.
The other point I want to make is that, more recently, serving on the Justice Sub-Committee under the chairmanship of my noble friend Lady Kennedy, it has become very clear that we have underestimated—it is rather tragic that the British people have not understood, or begun to understand—how much British lawyers and British legal expertise have been contributing to the strength of European law, which is in all our interests. British lawyers have made a terrific contribution and they are very much respected. In taking evidence from practitioners in this sphere—the chairman is here to strike me down if I am misquoting—they told us over and over how the law is improving under the present system. The overriding authority of the European Court is crucial, however, because it provides a context in which everyone can have confidence in the necessary reciprocity. These amendments are very important, and I hope the Government will take them seriously.
Lord Inglewood (Con)
My Lords, it is two or three years ago now, but I had the privilege of chairing a House of Lords ad hoc Select Committee on extradition law. Of course, extradition law, as far as the European Union is concerned, is the question of the European arrest warrant. I can say with confidence that the conclusion we reached, on the basis of the evidence before us, was that the system seemed essentially to satisfy all the parties concerned. It was working well, not only from this country’s point of view but from the point of view of other countries in the European Union. Of course, the reality is that a deep and special relationship will not inhibit criminals coming to this country. In a world where there is ever greater mobility, we will have our fair share of criminals from elsewhere and no doubt other countries will have their fair share of our criminals. We have to deal with that problem.
The other thing that was pretty apparent from our work was that most of the criticism of the system was hung up on the European Court of Justice. It was a criticism not of what the European Court of Justice on the whole decided was appropriate, but of it not being exclusively comprised of British citizens. We need to be absolutely clear about that. We are talking about a system, the generality of which worked extremely well and in everybody’s interests. Therefore, I ask my noble friend the Minister whether he can give the Committee an assurance that, whatever arrangement may come into being after Brexit, they will work as well as the existing arrangements.
We have heard a number of speeches this evening that have been a trifle philosophical in tone, and I do not want to criticise anybody for that. I want to make a purely pragmatic point: if the system is not as effective as the one we have now, there will be more criminals on the streets of this country. Do the Government wish to bring that about? Equally, more of our criminals will no doubt be enjoying their ill-gotten gains in relative security on the Costa del Sol. Is that what the Government want to bring about?
We have heard about Ireland and I need say no more about that. It is terribly important to be clear about the pragmatic, nuts-and-bolts, on-the-ground implication of scrapping this procedure because there is every risk and likelihood, if we are not careful, that we will degrade the system of justice in this country.
Lord Thomas of Gresford (LD)
My Lords, I follow the noble Lord, Lord Inglewood, in a plea that we do not go back to the system before the European arrest warrant was introduced. The noble Baroness, Lady Kennedy, referred to the case that we did together some years ago when the extradition proceedings, which lasted some four and a half years, were ended by the 12th application for habeas corpus being turned down by the noble and learned Lord, Lord Woolf, which he may remember. What he may not remember is that my client went back to the country demanding his extradition, where the prosecution accepted a plea of guilty to one out of 32 charges, and was given a sentence that resulted in his immediate release. That was the old system; the system we have had since the introduction of the European arrest warrant, with all the agencies that have come into being, started I think by Mr James Callaghan when he was Prime Minister, developing under the European Union banner, has been extremely good and effective.
In the Queen’s Speech debate on 27 June last year, it will not surprise your Lordships to know that I asked the Government what they were going to do about this whole area—about all the agencies to which the noble Lord, Lord Hannay, referred. What was going to happen? After that, there was complete silence. I wondered what was happening. These discussions and negotiations are as urgent as any to do with trade. They deal with the security of this country and the possibility that, if nothing is put in place, this country will become a haven for criminals, as opposed to somewhere the law is properly administered. But nothing happened—and so it was with considerable interest that I read the speech of the Prime Minister in Munich a week last Saturday. What was she going to say? She proposed a treaty. Who is negotiating that treaty? Who is in charge? Is it Mr Johnson? That is a bit unlikely. Is it Mr Fox or Mr Davis? Who are they negotiating with? The noble Baroness, Lady Goldie, in her reply to the last debate, said that she knew that there was a dialogue going on. What dialogue? I have not heard of any dialogue, and I am interested in this subject. Where are we?
The noble Lord, Lord Hannay, also asked the very pertinent question of what happens after March next year. Do the extradition warrant system and all the other bodies concerned with co-operation in criminal matters continue, or not? If they do not continue, the treaty to which the Prime Minister referred must be in place. As the noble Lord, Lord Judd, said a moment ago, we cannot have an interregnum—a period when nothing is happening. Something has to be put in its place, and nothing I have seen or read suggests that there is a dialogue or treaty in any form, draft or anything else ready to come into operation when we leave the European Union.
So specific questions on this issue can be asked of the Minister. What negotiations are happening? Who is doing them? When will there be a result? What is in the treaty? How are you going to put all these things together in a period of months to ensure the continuation of co-operation in this extremely important field? If there are no answers to those questions and the Minister just chuckles his way through, as he occasionally does—if he will forgive me—the security of this country is at risk, and we risk becoming that haven for criminals that would be a blight on our whole country.
The Earl of Listowel
My Lords, my name has been added to the amendment in the name of the noble Baroness, Lady Massey of Darwen, and I support every word that she said. Of course, she was chair of the All-Party Parliamentary Group for Children for many years, and had to give up that job because of her new responsibilities in Europe for the welfare of children. So I am sure the Minister will want to pay very close attention to what she has said.
I have a specific question for the Minister. Many foster carers in this country are from continental Europe. We do not know exactly how many, but the European Criminal Records Information System is very useful in ensuring that those interested in preying on children do not move from one country in Europe to another or from continental Europe to this country. The Minister will be aware of recent concerns that people interested in preying on young people in the developing world have been joining charities, for instance. Will he provide the Committee with as much information and detail as possible, given the concerns raised around the Committee this evening on these issues?
I was pleased to hear of the Prime Minister’s speech in Munich. I also recall that two or three years ago, as Home Secretary, she brought in the human trafficking Act, which was an important step forward. I look forward to the Minister’s response.
Lord Hogan-Howe (CB)
My Lords, until a short time ago I was Commissioner of the Metropolitan Police, having served for nearly 40 years making arrests and prosecuting people, which I quite enjoyed. I will say a few words about the importance for police officers, in particular in the investigation process, of some of the things that Europe provides and which need to be accommodated in the new arrangements. I worked in South Yorkshire, Merseyside and London and also served as one of Her Majesty’s inspectors looking at serious and organised crime. The Met led the extradition process for the United Kingdom—and still does—and also counterterrorist units, both in this country and with an international dimension, with 50 officers based in embassies around the world.
Many things remained constant in the 40 years that I was an officer, but some things have changed. One of the big changes is the mobility of people across our borders. In London particularly, a high number of foreign national offenders were arrested. The Met still arrests around 225,000 times a year. That is not 225,000 people, because many are arrested more than once. That is probably about 1 million people around the country and one in three of them is a foreign national offender—a very significant proportion of those arrested. Not everybody who is investigated and prosecuted is arrested. Of those in London, 55% are Europeans and 45% are from elsewhere. Both proportions are significant and have to be accommodated.
The ratio which I have described for London differs around the country. In some of our more rural areas there is a very high percentage of foreign national offenders. It varies by part of the country and seasonality. Different times of the year lend themselves to different types of migration. The police investigate very serious offences and more minor ones, but all demand the same level of proper investigation. The process that follows arrest or any investigation is usually similar. The first part is to confirm the identity of the suspect and the second to gather the available criminal intelligence about them. The third is to gather their criminal convictions, where they are recorded, and the fourth is to check on any forensic evidence that might be available for them. Together with the evidence, this forms a substantial part of the case.
One challenge for any investigating officer is that, where there is an arrest, an investigation is time limited. Some 90% of investigations are concluded within 24 hours of an arrest. This can be extended to 36 hours by a superintendent, but the majority of offences are investigated and concluded in the first 24 hours. It is, therefore, vital to gather the four things I have just mentioned fairly quickly. The arrangements we have had with Europe have been substantially better than those we had in the past. When you are investigating an international suspect it is not always easy to gather all that information quickly, but it is often vital that it is gathered before they are released.
For example, if someone has been arrested for rape and has on three previous occasions been arrested for rape in another country but not charged, you would want to know that information before you came to a conclusion about whether there had been consent as regards this particular offence. That is just one example of why this is important.
Baroness Kennedy of The Shaws
How do you make that effective if you do not have the European Court of Justice at the apex?
Lord Hogan-Howe
The noble Baroness is in a far better position than I am to talk about the law, so I am not sure that I am able to say that. We have an extradition treaty with America and many other countries where that type of arrangement is not in place, so I would need to understand why the American model and that of other countries works without the arrangement mentioned by the noble Baroness, and why it has to be in place in Europe. There may be a reason, but I am not aware of it.
Lord Hamilton of Epsom
My Lords, before my noble friend the Minister winds up this debate, I would like to address the problem of him being constantly accused of not spelling out the Government’s position. We are mid-negotiations. Surely, if you are negotiating with the EU, it is very difficult to reveal your negotiating position. Our experience of dealing with the EU is that when we start to reveal our negotiating position, it immediately laughs at us and tells us that it is absolutely ridiculous for us to think that we are going to get these concessions, and that we are cherry-picking and want to have our cake and eat it and all this sort of thing. It seems to me that the Government are in a very difficult position. They have to hold this debate because we are processing the Bill through Parliament, but simultaneously we are trying to negotiate with the EU. We cannot reveal our position. The overall position is that nothing is agreed until everything is agreed.
Lord Lamont of Lerwick
I totally agree with what my noble friend is saying. It is very important that that point is made: it is not made often enough and could be made every time on every amendment. Does he agree that the most absurd question of all, which we have had several times on previous amendments, is for the Government to be asked what their fallback position is? How on earth can someone in a negotiation say what their fallback position is?
Lord Hamilton of Epsom
My noble friend is absolutely right. Of course, the EU is watching all this extremely closely because it is desperate to try to snarl up the whole process so that we cannot leave. The fact that a referendum involving a democratic vote was held on this is regarded by most people in the Commission as a sign of weakness. I think it was President Macron who said the other day that if a referendum were held on whether France should pull out of the EU, the leavers would win, but of course he was not going to allow a referendum. I am sure that that will go down in history along with other French expressions such as “Let them eat cake”.
Lord Adonis
My Lords, I have six amendments in this group. They refer to the United Kingdom having continued access after withdrawal to passenger name records, to the Schengen Information System, to the European arrest warrant, to membership of Europol, to the European Criminal Records Information System, and to the fingerprint and DNA exchange with the EU under the Prüm Council decisions.
The questions put to the Minister by the noble Lord, Lord Thomas, went to the heart of the matter—that is, given that the Prime Minister said in her Munich speech that she wishes to see a treaty replace all these elements of the existing arrangements, the Minister should simply tell us the process by which we will be negotiating the treaty. This debate, as with many others, gives the complete lie to the ridiculous assertion that no deal is better than a bad deal. Let us be clear: if there is no deal on 29 March next year, the current arrangements to which the noble Lord, Lord Inglewood, referred, painstakingly negotiated over many years, for the European arrest warrant and the very high levels of engagement between the member states of the European Union—which the noble Lord, Lord Hogan-Howe, said were so important to his work as Commissioner of the Metropolitan Police—all fall.
Is the Minister going to tell us that the security of this country will be as safe as it is now if all those arrangements fall? I assume that he is not, in which case the United Kingdom leaving the European Union with no deal at the end of March next year would be a complete abdication of the national interest. We need to get that firmly established. As we have more of these debates and see the precise benefits of the EU—which, after all, are the reason we went into the European Union—it becomes clearer and clearer that leaving with no deal would be a dereliction of the national interest.
Lord Deben
Before the noble Lord leaves that point, does he also agree that asking the Government to explain how this treaty is being discussed and by whom cannot have any effect whatever on the negotiations between the Government and the European Union? Is it not true that several of the questions asked have had nothing to do with the negotiations? We would just like to know where the Government are on matters which are unconnected with those negotiations.
Lord Adonis
I entirely agree, and I hope that the noble Lord will say that to the noble Lord, Lord Lamont, who is sitting right next to him. It provides a devastating response to the noble Lord’s intervention just a moment ago.
We are asking the Government simply to declare the policy of Her Majesty’s Government in the negotiations that are taking place. Since one assumes that our European partners are being told what we are seeking to negotiate—it is quite hard to negotiate something if you do not tell the other side what you are seeking to negotiate—I cannot see that there is any damage to the public interest in telling this House and the public. These are very straightforward questions. The noble Lord, Lord Hamilton, says that we should not declare our hand midway. Are we or are we not in favour of keeping the European arrest warrant after 29 March next year? If we are, that is a clear negotiating objective of the Government. It will require a straightforward continuation of the current arrangements, and people like me will say all the way through that it is yet another argument as to why we would be much better off staying in the European Union in the first place and not having to go through this hugely complex and difficult process of attempting to replicate arrangements so that we do not end up with a worse situation, when there is every likelihood that we will.
The devastating response to and commentary on all these matters come from the Prime Minister herself—both in her Munich speech, in which she made it very clear that she would regard it as damaging to the national interest not to have a treaty at the end of March, and in her speech on 25 April 2016 before the referendum, in which she was even clearer on these matters. In that latter speech, in which she sought to argue why we should stay in the European Union, she went through in great detail the benefits that the European arrest warrant, the Prüm arrangements and so on gave to the security of the United Kingdom. Those are all points that the noble Lord, Lord Inglewood, has raised.
The noble Lord, Lord Hogan-Howe, seems to want to will the ends without the means. I understand that he has not had to negotiate these issues himself, but just says, on a wing and a prayer, that he wants these objectives to be secured and is sure that our negotiators in Brussels will be able to do it. If the noble Lord had had any systematic engagement with the Ministers responsible, I do not think he would necessarily have so high a degree of confidence in their capacity to negotiate his objectives.
The Prime Minister herself gave the devastating response to the question of why we should stay in the European Union in respect of these security and justice issues. In her speech of 25 April 2016, when referring to the European arrest warrant and the passenger name record directive, she said that these show,
“2 advantages of remaining inside the EU … without the kind of institutional framework offered by the European Union, a complex agreement like this could not have been struck across the whole continent, because bilateral deals between every single member state would have been impossible to reach”.
Let us be frank: that is why we are in the European Union, why it serves our national interest and why we have a very high degree of co-operation when it comes to justice and home affairs.
We are talking about very large numbers. The Prime Minister herself gave the figures, saying that in the five years prior to her speech—2011 to 2016—5,000 people had been extradited from Britain to Europe under the European arrest warrant, and 675 suspected or convicted wanted individuals were brought to Britain to face justice. She said:
“It has been used to get terror suspects out of the country and bring terrorists back here to face justice”.
Just as the noble Lord, Lord Thomas, gave his extraordinary statistics about how long it used to take to get extradition proceedings under way, the Prime Minister said:
“In 2005, Hussain Osman—who tried to blow up the London Underground on 21/7—was extradited from Italy using the Arrest Warrant in just 56 days. Before the Arrest Warrant existed, it took 10 long years to extradite Rachid Ramda, another terrorist, from Britain to France”.
These issues are of the utmost gravity and we need an assurance from the Minister that, in the negotiations for the treaty that the Prime Minister referred to in Munich, we will seek to maintain arrangements that are in every respect as good as those we currently have. If we do not have those in the treaty she presents to Parliament at the end of the year, many of us will say that this whole Brexit process has seriously damaged the security of the United Kingdom.
Lord Liddle (Lab)
Does my noble friend accept that the reason the Government will not disclose their negotiating objectives is not that this would somehow prejudice their position but rather that they do not know what those objectives are? The truth is that this is an issue of real sensitivity to the Brexiteers. The question is whether these arrangements are intergovernmental or involve the institutions of the European Union and the supervision of the European Court of Justice.
I know all about this because, as an adviser to the then Prime Minister, I went through many iterations of this issue. When justice and home affairs first became a subject of the European Union, and a pillar of the Maastricht treaty, it was all at an intergovernmental level. Gradually, it became more communitised, as it were, for the simple reason that that was the way to make it work. We could not make it work as an intergovernmental mechanism. We could not get the degree of co-operation needed to make something like the European arrest warrant work without having some judicial supervision mechanism, so the Labour Government agreed to it—somewhat reluctantly because some of the people involved were not the greatest supporters of civil rights in many respects, but they agreed to it.
What is happening in Brussels at the moment is that the member states are discussing among themselves what framework they are going to set for the negotiations for the rest of the year. That will be coming out at the end of March.
Baroness Goldie
Is the noble Lord, Lord Liddle, making an intervention? I want to be clear what the order of speaking is.
Baroness Goldie
I think your noble friend thought that he had been usurped.
Lord Adonis
My noble friend’s intervention is excellent and gives the Minister more to respond to. I know he is short of points to deal with at the end of this debate.
Lord Liddle
This is Committee stage. We are allowed to go back and forth. What are the Government saying to other member states at the moment about the nature of the agreement on this that they are prepared to contemplate? Are they saying to our current partners that they are prepared to see judicial supervision in these arrangements or not? I hope the Minister will answer that very simple point.
Lord Paddick (LD)
My Lords, I apologise for not speaking at Second Reading; I took the view that I was unlikely to add anything new, bearing in mind the number of speakers. However, I have a few new things to add as a result of today’s debate. I had more than 30 years of service in the Metropolitan Police Service—which pales into insignificance when you consider the experience of the noble Lord, Lord Hogan-Howe—but I have also been briefed by the National Crime Agency lead on Brexit and by the director-general of the National Crime Agency on these issues.
It might be considered a technical point, but there is a difference between counterterrorism intelligence exchange and law enforcement. The counterterrorism intelligence tends to be of such a sensitive nature that it is exchanged on a bilateral basis and therefore is nothing to do with the European Union. When sensitive data, for example, are shared by the United States with the United Kingdom, the United States would not do that if it was on the basis that the United Kingdom would then share all that intelligence with the EU 27. However, there is a technical difference between counterterrorism in terms of intelligence and counterterrorism in terms of bringing terrorists to justice, and here we are talking about bringing people to justice using these various mechanisms.
My noble friend Lady Ludford referred to the European Court of Justice and the Charter of Fundamental Rights as two important mechanisms which allow this co-operation to take place within the European Union. In her Munich speech, the Prime Minister tantalisingly mentioned the European Court of Justice and the potential for a role for it after the UK had left the European Union in relation to things such as the European arrest warrant. The noble Baroness, Lady Kennedy of The Shaws, made the point that this is not about relationships between two sovereign nations, it is about individual rights in terms of whether an individual is going to be moved from one country to another. Perhaps the Minister can give us some clarity on the Government’s position on the European Court of Justice by explaining what the Prime Minister meant in her speech.
The noble Lord, Lord Cormack, talked about the need for the closest possible co-operation, which is what the National Crime Agency would say, and that the measure of the success of the negotiations would be how closely we can replicate the existing arrangements. I believe that the Government’s position is that they want to replicate all of these things as far as possible, and that is what I took from what the Prime Minister said. So to say that the Government cannot give away their negotiating position by saying what the objective is going to be is not, I think, true in this particular case. Perhaps the Minister will tell us that what the Government seek to achieve is as close as possible to the arrangements we have, but that is not the question. The question is how the Government are going to secure those arrangements; that is the critical question, not what they are seeking to achieve, but how they are going to do it. That is because there seems to be a contradiction between not wanting to have any jurisdiction of the European Court of Justice on the one hand and yet wanting to participate in things such as the European arrest warrant on the other.
The noble Baroness, Lady Kennedy of The Shaws, helped the House to introduce the very important issues around protected persons. For example, the victims of domestic violence have the protection of orders that are made in one country enforced in another, which brings a new dimension to the importance of these arrangements. The noble Baroness, Lady Massey of Darwen, and the noble Earl, Lord Listowel, talked about the importance of the protection of children through the European arrest warrant and the other measures, in particular the European Criminal Records Information System, which enables law enforcement to quickly check the antecedents of people who are suspected of these sorts of offences. These are extremely important issues in terms of bringing people to justice and in terms of protecting citizens not only of the United Kingdom but of other European states. We have heard from my noble friend Lord Thomas of Gresford how extradition can take years—four and a half years in the case he mentioned—whereas under the European arrest warrant justice can be brought far more swiftly.
For me, the essential question is not what the Government want the end position to be, because that is quite clear—and it is certainly what the National Crime Agency and other law enforcement officers want, and indeed what the noble Lord, Lord Hogan-Howe, has also said. The question that the Government need to answer is this: how on earth is this going to be achieved, bearing in mind their apparent contradictory stances on other issues such as the European Court of Justice?
Baroness Hayter of Kentish Town
My Lords, as we have heard, these amendments relating to reciprocal issues are key to continuing to protect and assist British citizens after Brexit, including children and protected persons, in ways that hitherto our EU membership and cross-border agreements have provided. In particular these are the European arrest warrant, the mutual recognition of family court judgments, information exchange, Europol and Eurojust.
The Government’s approach to these issues must be agreed in principle with the EU in time to be included in the framework part of the Article 50 requirements and form part of the withdrawal agreement, so a satisfactory approach to these will be key to the future vote on that deal. However, as we have heard from speakers tonight, there seems to be an extraordinary lack of urgency, especially if there is any chance—I am not sure whether this is what the noble Lord, Lord Hannay, hinted at—that a standstill transition agreement could not cover these issues. That would make it even more urgent.
I ask in particular about the Government’s urgency, or lack of it, as I began asking Written Questions on this a year ago. The noble and learned Lord, Lord Keen, will remember it very well: it was on St Valentine’s Day last year—I do not think he chose it to be that day, but never mind—that he answered some of my questions on matrimonial and maintenance proceedings. It was very reassuring: he said that the Government,
“recognises the importance of the issues”.
Wow. There was no more than that then, nor indeed on civil judicial co-operation and cross-border disputes and family law when he replied to a similar Written Question in August. I worry about the lack of progress since then.
As the Prime Minister has remarked and others have repeated, keeping our citizens safe is the first mission of any Government. Therefore, like others, I welcome that she used the Munich speech to reiterate her desire to negotiate continued, and in some cases enhanced, co-operation with EU nations and particularly with these bodies and schemes. As we have heard, the amendments cover the Schengen Information System, the European arrest warrant, the European Criminal Records Information System, Europol and Eurojust. Given what we have heard today and in earlier debates, the Minister will recognise the importance of our continued participation in all of those, but also the challenges that that will bring to them in negotiating.
While we heard from Munich the desire for this comprehensive agreement, it is time for the Minister to offer a bit more detail and clarity sooner rather than later. It is about the direction of travel or the objectives. It does not undermine any negotiations for us, not just our Parliaments, to know what the Government want to do. As the noble Lord, Lord Deben, said, it is time for the Government to move from intention to reality. These issues, as has been touched on just now, are partly held up by an obsession with red lines around the ECJ. They cannot be allowed to stand in the way of some logical and sensible solutions to these problems. These issues are too important to be left to a divided Cabinet. At the moment I see a pantomime horse, or Dr Dolittle’s pushmi-pullyu, being pulled in two different directions, mostly about red lines that are immaterial to the issues we have been discussing. I hope we can hear about some direction and some practical steps from the Minister, particularly on how these negotiations are taking place.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
I thank all noble Lords and noble Baronesses who have contributed to what has been a fascinating debate. I reiterate the Government’s commitment to ensuring that the outcome of our negotiations with our partners in the EU delivers continued close co-operation on internal security matters.
There are parallels between the effect of Amendment 13 in the name of the noble Baroness, Lady Ludford, and that of Amendment 12 in the name of the noble Lord, Lord Wallace of Saltaire, which was debated previously, in so far as they both seek to discuss the future relationship with the EU, which is, of course, subject to the negotiations. The noble Baroness’s amendment seeks to prevent the Government from bringing regulations into force until agreed procedures for continued participation in EU internal security measures have been approved by both Houses. The Government have already committed to providing Parliament with a meaningful vote on any final deal. This will give Parliament the opportunity to scrutinise the future relationship between the UK and the EU in all these areas. For this reason, it is our view that the amendment is not needed.
I must come back to the points made by my noble friends Lord Hamilton and Lord Lamont. Many noble Lords have pushed me and asked for further detail and clarification on the negotiations. This Bill is negotiation agnostic; it is not concerned with the negotiations. I understand why people want clarification in all those areas, but, of course, when we have reached an agreement, it will be the subject of future legislation that noble Lords will no doubt want to comment on in great detail. However, I will attempt to answer as many questions and go into as much detail as I can. I suspect that the noble Lord, Lord Adonis, may be a little disappointed yet again, but I will do my best.
Lord Adonis
Can the Minister answer the question put by the noble Lord, Lord Thomas, as to which Minister is taking the lead in the security negotiations?
Lord Callanan
I will come to that later in my speech, but I will answer that question.
In that same paper, we made it clear that we value the operational benefits that we derive—I was struck by the comments on this from the noble Lord, Lord Hogan-Howe, and on how valuable many of them are. The noble Lord, Lord Hannay, referred to many of them, too, including the passenger name record directive, the second generation Schengen Information System and the European arrest warrant. There is also ECRIS, referred to by the noble Earl, Lord Listowel, and all the various acronyms that go with many of these JHA matters. They are all to do with the systematic exchange of information with our EU partners—for example, on criminal records—which helps to deliver fair and robust justice. I hope that reassures the noble Lord, Lord Cormack. He referred to Interpol. I assume that he meant Europol, but, for the avoidance of any doubt, I should say that we continue to co-operate in the same way with Interpol.
We made it clear that we want to agree future arrangements in this area that support co-operation across a range of EU measures and agencies, and to avoid operational gaps for law enforcement agencies and judicial authorities in the UK and the EU. The level of co-operation that we want to sustain goes beyond the specific tools and measures highlighted by the noble Baronesses, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis. We have described the legal instruments here as a “toolkit” that can provide cumulative benefits. We have also indicated that we want our future partnership with the EU in this area to be dynamic, allowing us to co-operate if necessary in new ways in the face of evolving threats.
The amendment tabled by the noble Baroness, Lady Kennedy, highlights the respective roles of domestic courts and the CJEU. We made it clear in our future partnership paper on security, law enforcement and criminal justice that a future agreement in this area would need to provide for dispute resolution. Let me give a little more detail on that.
On leaving the EU we will bring to an end the direct jurisdiction of the CJEU in the UK. There are a number of existing precedents where EU agreements with third countries provide for close co-operative relationships without the CJEU having direct jurisdiction in those countries. The UK will engage proactively to negotiate an approach to enforcement and dispute resolution that meets the key objectives of the UK and the EU. We also published a separate future partnership paper on enforcement and dispute resolution last August, addressing many of those points and setting out the Government’s approach to these issues.
The House has of course debated this issue on a number of occasions, particularly earlier this month, on 8 February, in the debate on the EU Committee’s report on judicial oversight of the European arrest warrant. The withdrawal agreement and implementation Bill will implement the withdrawal agreement in our domestic law. In addition, the Government have already committed to provide Parliament with a meaningful vote on any final deal. This will give both Houses of Parliament the opportunity to scrutinise again the future relationship between the UK and the EU. We need to be able to work with the EU to respond quickly and effectively to the changing threats we face from terrorism and serious organised crime. In negotiations, we will be seeking to agree the best possible way to continue our work alongside our European partners in support of our common goals and shared interests. We are absolutely committed to securing the close relationship that the noble Baronesses, Lady Ludford, Lady Kennedy and Lady Massey, and the noble Lord, Lord Adonis, want to see—and on that basis I hope that they will not press their amendments.
Amendment 99, also tabled by the noble Baroness, Lady Kennedy, would prevent regulations made under Section 7(1) of the Bill from diminishing the protections in relation to “protected persons” set out in Part 3 of the Criminal Justice (European Protection Order) (England and Wales) Regulations 2014. As I understand it, the amendment seeks to ensure that the relevant authorities in England and Wales will continue to recognise and act upon European protection orders made in remaining member states after exit day, whether or not those states act on ours.
The EPO regime, established by an EU directive of the same name and implemented in England and Wales under the cited regulations, which came into force in 2015, is essentially a reciprocal regime. It requires the relevant designated authorities in the different member states involved to act and to communicate with each other in the making of an order and in its recognition and enforcement—and also, indeed, in any modification, revocation or withdrawal of one. It is not possible for us to regulate from here to require the relevant authorities of remaining member states to act in any particular way. As such, if we are not in a reciprocal regime we will no longer issue EPOs to remaining member states, since it would be pointless to do so, and nor will the authorities in those member states issue them to the UK, for the same reasons.
In short, absent our continued participation in the EPO regime, or in some proximate reciprocal arrangements in its place, these regulations will be redundant; they do not work unilaterally. This amendment therefore pre-empts the outcome of the negotiations, potentially requiring the retention of redundant legislation. It would not be right to create a false impression by retaining redundant legislation. I am happy to be clear, however, that if the forthcoming negotiations produce an agreement to continue access to the regime established under this directive, or something like it, appropriate steps and legislation will be brought forward to implement it at that time. This will encompass the protections for protected persons. We will, of course, consider that at that stage. Meanwhile, for now, there is no practical point or purpose in having such an amendment or these provisions.
I shall answer some of the other points that were made. The noble Baroness, Lady Ludford, asked me about the O’Connor case and about extradition to the UK from Ireland. I am sure that the House will understand that I am somewhat limited in what I can say on this matter; it is a live case at the moment. Suffice it to say that we are monitoring it closely, but it would be wrong to speculate on its impact before the case is concluded. Once it is, we will be happy to do so.
The noble Baroness, Lady Ludford, and the noble Lord, Lord Paddick, I think it was, asked how we could reconcile the principles set out in the Prime Minister’s Munich speech, first on UK sovereignty and secondly on the ECJ. As the Prime Minister said:
“The Treaty must preserve our operational capabilities. But it must also fulfil three further requirements. It must be respectful of the sovereignty of both the UK and the EU’s legal orders. So, for example, when participating in EU agencies the UK will respect the remit of the European Court of Justice. And a principled but pragmatic solution to close legal co-operation will be needed to respect our unique status as a third country with our own sovereign legal order”.
The noble Lord, Lord Hannay, asked about justice and home affairs in the implementation period. We welcome the EU’s position that the UK should continue to participate in existing justice and home affairs measures where it has opted in. We also want to ensure that the UK and the EU can take new action together against unforeseen incidents and threats during that period. For those reasons, we want to be involved in new measures introduced during implementation where that is appropriate. He also asked about the Prime Minister’s speech in Munich. I confirm that she was talking about all the justice and home affairs measures he mentioned—the EAW, ECRIS, Europol and all the other appropriate acronyms.
The noble Baroness, Lady Ludford, asked about the European arrest warrant and about the chance of a successful outcome compared with Norway. We value our co-operation through the EAW as it provides a faster and cost-effective way of handling extradition and helping us tackle cross-border criminality. With regard to Norway, our starting point for negotiations on future co-operation will be different from that of either Norway or Iceland, where a bilateral agreement is also in place. Of course, our starting point is different from theirs in so far as our extradition arrangements will be fully aligned with those of the EU at the point of our exit since we operate the same tool. That was not the case with Norway and Iceland when they joined.
The noble Lord, Lord Thomas, asked where we are in the negotiations and who is doing them—which the noble Lord, Lord Adonis, was also interested in. The Secretary of State for Exiting the EU is responsible for conducting negotiations in support of the Prime Minister. He is supported by the core negotiating team, which is made up of senior officials from a range of government departments. In response to his question about contacts, officials are engaging now and constantly with EU counterparts on a range of issues—but I come back to my earlier point that it would not be appropriate to give a running commentary on these discussions. We approach the next round of negotiations with optimism.
Lord Thomas of Gresford
Can the Minister tell us if the European Union has appointed anybody to represent the 27 other countries in conducting the other side of treaty negotiations?
Lord Callanan
Michel Barnier is the EU chief negotiator. I thought that that was fairly obvious.
Finally, the noble Lord, Lord Adonis, asked about no deal. Of course, we approach these negotiations not expecting failure but anticipating success. We are confident that continued practical co-operation between the UK and the EU on law enforcement and national security is very much in the interests of both sides, so we approach these negotiations anticipating success. We do not want or expect a no-deal outcome. However, a responsible Government should prepare for all potential outcomes, including the unlikely scenario in which no mutually satisfactory agreement can be reached. That is exactly what we are doing across the whole of government. The UK uses and benefits from a range of international information-sharing tools in the area of security and law enforcement, which are by no means limited to EU mechanisms but include bilateral and multilateral channels, including Interpol and the Council of Europe.
I hope I have answered all the questions—
Lord Thomas of Gresford
Do I understand the Minister to be saying that the people conducting the trade negotiations will deal with the security stuff as well? Is that what he is saying? Are there no lawyers on the other side to conduct the negotiations on behalf of those 27 other countries? What is the situation?
Lord Callanan
There are lead negotiators on each side but they are supported by a whole range of officials and Ministers from various departments. David Davis is our negotiator, Michel Barnier is the EU’s negotiator, and they have different members in each of the teams—
Lord Thomas of Gresford
But is the withdrawal agreement the same thing as the treaty or are they separate?
Lord Callanan
No, the treaty will be a separate piece of legislation when we negotiate it. I hope I have tackled most of noble Lords’ questions and they will be able to withdraw or not move their amendments.
Lord Pannick (CB)
May I just ask the Minister about his comments on the European Court of Justice? Is there anything in the case law of the ECJ that justifies the Government’s reluctance for it to continue to be the dispute resolution procedure for the matters we are discussing?
Lord Callanan
We have been clear that respecting the Brexit vote means delivering on having control of our own laws. Our Supreme Court will be the ultimate arbiter of our own laws and it would not be appropriate to submit ourselves to the jurisdiction of a foreign power.
Baroness Ludford
I should briefly like to thank all speakers in this extremely valuable debate, especially the co-signatories to my amendment, the noble Lords, Lord Cormack and Lord Judd, and my noble friend Lady Smith of Newnham. It was evident that, almost without exception, there was very strong support for staying in these crucial law enforcement measures. I am not so sure we got what the noble Lord, Lord Cormack, asked for, which was a reply of real substance. We certainly did not get the clarity that my noble friend Lord Paddick asked for on the ECJ. Quite honestly, that was an extraordinary response to the noble Lord, Lord Pannick. As the noble Lord, Lord Hannay, said, there is no safety net in this area. The WTO is not much of one but it exists.
Lord Mackay of Clashfern (Con)
Is the noble Baroness talking of the European Court of Justice as though there would be no change in its constitution as a result of our leaving the European Union?
Baroness Ludford
There obviously will be a change, in that there will not be a British judge or British Advocate-General. What we want to know is how we will plug into what the Prime Minister asked for in Munich: to have respect for the sovereignty of the UK’s legal order—the Minister really emphasised only that—but also respect for the remit of the ECJ, at least when participating in agencies. That raises the question: will we also respect the remit of the ECJ when it rules on the individual rights of people who challenge, for instance, a European arrest warrant? We have no answer to that question but the people who are nationals of those countries will want to know exactly what the jurisdictional regime is. I am afraid we are no closer to knowing that. As my noble friend Lord Paddick said, however, we do have clear negotiating objectives in this area—this is perhaps unique in Brexit—as the Prime Minister has set them out and the Minister has just confirmed them. What we are utterly in the dark about is how the Government propose to secure the arrangements, structures and mechanisms for continuing effective and efficient cross-border law enforcement co-operation.
The Minister said that we will have a meaningful vote on the withdrawal agreement, which is supposed to give us an opportunity to scrutinise at the end of the process, and hence that this amendment is not needed. But that is not enough; we want a purchase and input into those negotiating objectives. The Prime Minister makes a speech in Munich and tells us, “These are the objectives”, but the Government do not deign to tell us how on earth those objectives are to be secured. Like me, the Minister is a veteran of the European Parliament. We found there that the European Commission, the member states and the Council learned the hard way that unless you bring the European Parliament, in that case, into your confidence about your negotiating objectives and how you are going to secure them, the danger is that at the end of the process the deal will be rejected because it has not been kept informed along the way. The lesson in Brussels was to front-load the process by keeping the people who might be in a position to block the deal informed of how it was to be secured.
I am afraid the Minister did not convince me, at least, that we are any further forward than we were with the future partnership paper, because that paper did not set out how we are to achieve these objectives. It said what the Government wanted to achieve. That has been repeated by the Prime Minister and the Minister, but we are none the wiser about how these measures will be replicated when we no longer have the structures and mechanisms of the EU. I fear that we will have to come back to this in all seriousness at future stages but, for the time being, I beg leave to withdraw the amendment.
Lord Goldsmith
“( ) Regulations bringing into force subsection (1) may not be made until the Secretary of State has laid before both Houses of Parliament proposals for arrangements for the continued application of the Charter of Fundamental Rights to retained EU law under sections 2, 3 and 4.”
Lord Goldsmith (Lab)
My Lords, we now come to the first group of amendments that deals with the exclusion from the Bill of the European Charter of Fundamental Rights. A number of amendments relate to the exclusion of the charter and to its specific provisions, so this may be a convenient place to debate the general principle of what the Government are proposing and the issues to which that gives rise. I shall therefore speak also to Amendments 14, 20, 25 and 34. Amendments 46, 47, 333 and 347 are consequential and I apprehend that there will be no need to say anything more about them.
The starting point for these amendments is the Government’s decision to exclude the European Charter of Fundamental Rights from the carryover into domestic law of existing EU law that the Bill is otherwise designed to achieve. As noble Lords know, and as the Government have been at pains to point out, the purpose of the Bill is to maintain legal continuity, certainty and stability for businesses and individuals by incorporating EU law as it stands into UK law. As the Prime Minister said in her foreword to the White Paper, the purpose is to ensure that:
“The same rules and laws will apply on the day after exit as on the day before”.
The White Paper goes on to explain that it will then be for democratically elected representatives in the UK, in this Parliament and the devolved Administrations, to decide whether to change that law after full and proper scrutiny and debate. This decision to bring EU law into UK law at the moment of exit is an essential part of the plan to provide clarity and is necessary, it is said by the Government, to bolster confidence and planning as the Brexit process comes into effect. The noble Baroness the Lord Privy Seal said at Second Reading that this is,
“about ensuring that people’s rights are maintained. It is vital to a smooth and orderly exit from the EU”.—[Official Report, 30/1/18; col. 1374.]
However, there is one glaring and deeply troubling exception to the proposal to bring EU law into domestic law so that it is the same the day after exit as it was the day before: the exclusion of the charter, in its entirety, from this exercise.
In another place, the Solicitor-General described the exercise as downloading EU law into domestic law, but what is not being downloaded is the charter. In another place, Sir Keir Starmer noted that although thousands of provisions of EU law are being converted into domestic law, and may have to be modified in some sense after that exercise, only one provision in the thousands on thousands of provisions of EU law is singled out for extinction, and that is the charter. That gives rise to a conundrum.
Lord Lamont of Lerwick
Is the noble and learned Lord going to come on to explaining why it was, when he was Attorney-General and working with Tony Blair, he worked so hard to try to get the charter excluded from the Lisbon treaty? Indeed, they thought they had achieved such an opt-out from the treaty until it was overruled subsequently by the European Court of Justice. Surely what we are doing now is trying to fulfil the objective that he himself had in mind.
Lord Goldsmith
I can see noble Lords opposite are all very well briefed. I predicted this at Second Reading. I will come on to that, but let me make some progress on the arguments which matter.
Lord Goldsmith
No, I will make some progress on the arguments which matter. As the Constitution Committee of this House said at paragraph 119 of its report, the conundrum is this:
“The primary purpose of this Bill is to maintain legal continuity and promote legal certainty by retaining existing EU law as part of our law, while conferring powers on ministers to amend the retained EU law. If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day”.
I want to examine the reasons that are put forward for not including the charter. The more I look at the arguments, the more convinced I become that the Government have got it wrong. I will not deny that there are issues as to the best way to bring the charter into effect in domestic law, and there are other amendments which will debate that, but Amendment 13A would require the Government to bring forward proposals for its continued application and the route by which the charter can be given effect.
Viscount Hailsham
Would the noble and learned Lord tell the Committee whether he is contemplating that the charter should be incorporated into domestic law as a statute, and as such be capable of amendment?
Lord Goldsmith
I am suggesting that the charter is brought into domestic law in the same way as all the other provisions of EU law will be brought into domestic law by this Bill, if it is passed. That means that they will be subject to the powers in the clauses that will be passed for amendment through orders, if this House and the other place approve that way of doing it. They will also, of course, as always, be subject to amendment by primary legislation. I will come on to this, but it is interesting that special protection is given to the ECHR through the Human Rights Act to protect it as we go forward, but there is no protection provided at all for the rights which underlie the charter. That is one of the deficiencies that are not taken account of in the Government’s proposal.
Baroness Deech
Does the noble and learned Lord accept that perhaps we are being tied in knots by his argument? The nub of the charter, and why it is different from the European Convention on Human Rights and our Human Rights Act, is that the charter says that judges can set aside, invalidate or nullify our Acts of Parliament. That is the nub of it and is why it does not sit with the rule of law and parliamentary sovereignty. If you incorporate it in domestic law, you are in a real tangle, because if you try to repeal it, judges could set that aside. You end up in a vicious spiral.
Lord Goldsmith
I am grateful to the noble Baroness for the intervention. Of course it is not the charter which provides that, in certain circumstances, our courts have the ability to disapply domestic law; it is EU law and its ability to override Parliament. That is not what the charter has created; it is EU law that has created it. That is something which this Bill is intended to remove.
I want to get back on to the reasons why. The first reason put forward—this is the nub of the question put to me by the noble Lord, Lord Lawson—is that the charter merely codifies existing rights and principles.
Lord Goldsmith
I apologise to both noble Lords. The proposition is that the charter does no more than codify existing rights and principles, so it is not necessary to bring it in. It has been said, for example, by the very distinguished and independent Bingham Centre for the Rule of Law that that proposition is demonstrably not correct. It sets that out in a detailed report that I commend to noble Lords. An opinion of Queen’s Counsel obtained by the Equalities and Human Rights Commission concludes that in fact this would lead to a significant weakening of human rights protection in the United Kingdom. Against those independent statements, it is no wonder that many NGOs and many members of civil society are deeply troubled about the exclusion of the charter. It is not just civil society that is concerned about that, as the noble Baroness, Lady Ludford, noted in the last debate, but industries such as the tech industry.
One can find examples of rights that are not protected in the report, which I also commend to noble Lords, by the Joint Committee on Human Rights. In its right-by-right analysis it identifies which rights are already included in our law and which are not. For example, on the very first item in the charter—Article 1 on the protection of human dignity, which many people would regard as the most fundamental human right and the basis of all others—the Government’s right-by-right analysis gives two reasons for saying that that would be continued: first, an unincorporated treaty, the Universal Declaration of Human Rights, which does not have enforceable effect in this country at all; and, secondly, as a general principle of EU law—but, as noble Lords will know, this Bill seeks to prevent general principles of EU law being given effect or creating any enforceable rights. That is an aspect that we will have to come back to later in the debates on the Bill.
Lord Faulks (Con)
The noble and learned Lord identifies the fact that certain rights are no longer protected adequately because the charter contains rights that are not there in the European convention or, presumably, otherwise provided for by law. Could he tell the House why the Human Rights Act was not expanded to take into account the protection of these laws? At no time from 1998 to the time when the Labour Government lost power was there any attempt to include these rights that he now says are a central part of our law.
Lord Goldsmith
They were, because the charter provided for them. The Human Rights Act incorporated one set of provisions only, the European Convention on Human Rights, which goes back to just after the Second World War and which provides the classic political and civil rights. The other rights that we find in the charter, which is a much longer document and refers to socioeconomic rights, were not included in the Human Rights Act because they were not included in the European Convention on Human Rights.
The right-by-right analysis demonstrates which of these rights are not included. Given that the Government’s objective, as stated by the Prime Minister, is to ensure that the protections for people in this country are the same the day after exit as the day before, I respectfully suggest that it is not for me to identify why that is not right; it is for the Government to demonstrate why it is. When we have substantial independent bodies such as the Bingham Centre and independent opinions from QCs demonstrating that actually it is not the case that the protections remain the same, the Government need to explain. I shall come on to that further.
Obviously there are examples of rights in the charter that reflect precisely other rights that we have within our law. In particular, there are a number of rights in the charter that are explicitly based on the European Convention on Human Rights; they are the same. Indeed, during the negotiations I went to some pains to try to ensure that they were phrased in the same way so as to prevent lawyers from saying, “It’s written differently so it must mean something different”. However, those are not the only rights that are there. As I noted at Second Reading, the charter is based not just on the European Convention on Human Rights but on principles of EU law and on principles that are commonly accepted by the member states, and those are in a different position from the ECHR rights.
Lord Brown of Eaton-under-Heywood (CB)
Just take one of the rights that is precisely mirrored in the convention. Is it suggested that henceforth, the wise complainant who faces primary legislation here which is incompatible with that right should therefore sue under both the charter and the convention because, lo and behold, under the convention, despite the constitutional arrangement whereby the court’s powers are limited to a declaration of incompatibility, he can disapply the primary legislation? Is that to be the consequence: that in a case where it matches, the convention trumps the constitutional settlement we arrived at, to which the noble Baroness, Lady Deech, referred?
Lord Goldsmith
That will depend on the shape of the Bill when it is completed—in particular, what is said about the provisions which deal with primacy of EU law—but at the moment, as the noble and learned Lord will know well from the cases he sat on, people have been bringing cases by reference to both the charter and the convention. One reason for that is that the protection under the charter is more powerful. In future, if people want protection of human rights, they will want the more powerful protection, and if that remains available after the Bill is enacted, they will look to it.
Baroness Deech
So if that protection is more powerful, the entire British structure relating to human fertilisation and embryology, which is very liberal and go-ahead, could be wiped out by the application of Article 3. It is very fortunate that the bodies opposed to our progress in reproductive rights have not cottoned on to that. It talks about the prohibition of eugenics, whatever that is, and selection of persons. By interpretation, it would stop us doing mitochondrial research, selection of embryos to screen out disease and a whole host of other things. Another article ensures continuing freedom of movement. Surely we do not want that.
Lord Goldsmith
The noble Baroness raises two different points. Some of the rights in the charter plainly do not continue after exit because they are dependent on our membership of the EU. Those include freedom of movement, which is based, as the explanations of the charter plainly show, on the rights that currently exist. There are others, such as the right to vote in European elections, which will not apply.
Let me make this point now, because it is one of the objections raised to keeping the charter in. As with many other provisions of EU law, there will need to be changes—I think they are described as deficiencies in the Bill; defects. For example, other provisions of EU law refer to bodies to which we will no longer belong or to supervising agencies with which we will no longer be concerned because we will have left the European Union. That is what the provisions of the deficiency orders are intended to deal with. So, too, they can deal with matters under the charter which no longer have effect for that reason.
The noble Baroness’s first point was a different matter, which was to do with the ambit of Article 3. I am sure that she has it clearly in mind, but the explanations of Article 3 make it clear that:
“The reference to eugenic practices, in particular those aiming at the selection of persons, relates to possible situations in which selection programmes are organised and implemented, involving campaigns for sterilisation, forced pregnancy, compulsory ethnic marriage among others, all acts deemed to be international crimes in the Statute of the International Criminal Court”.
I do not doubt that the noble Baroness would be as opposed to those provisions as the rest of us would be. In relation to reproductive cloning, which may be what she had in mind, the explanations talk about being against reproductive cloning, but that is not the same as therapeutic cloning. We can have debates about that if need be.
Let me move on, if I may, because I have only started to deal with one aspect of the issue. In terms of the substantive protections that the charter provides but the ECHR does not, although it covers many of the same, reference has been made already to the case of Mr David Davis himself and Mr Tom Watson. I say this not because it is amusing to point the finger at Mr Davis, in his current position, having relied on the charter, as we know he did, but because it is illustrative of something significant. As a Back Bencher, he and Mr Watson brought a case against the provisions of the Data Retention and Investigatory Powers Act—DRIPA. Mr Davis was concerned that they would impinge on the ability of MPs to have confidential communications from their constituents. In his argument, he and his lawyers relied on the charter, and they were successful in doing so. The court agreed that the charter was relevant.
Another example of new rights, developed rights or rights that have emerged through the dynamic approach of the charter is in the Google Spain case in which the right to be forgotten arose as a result of an examination of Articles 7 and 8 by the Court of Justice of the European Union. So, there are a number of examples where the substantive protections will be different. I have made it clear that there are many examples where the substantive protections are the same, but the purpose behind the Bill is to make sure that the protections for people are the same the day after leaving as the day before.
It is not just the substantive protections. There are different remedies, one of which has been referred to already—the ability to disapply legislation if that is where the Bill ends up at the end of the day. That is a more powerful remedy than the Human Rights Act. That was demonstrated in the Benkharbouche case when the State Immunity Act was disapplied so that foreign employees of an embassy could bring claims, which they would not otherwise be able to bring, so as to produce a more just situation.
The Government’s position on the substantive protections appears to have changed. I understood that the Government said that the protections would be the same, but now the formula that appears to be being used is that there will be no significant loss of substantive protection. That is not the same thing. No significant loss of substantive protection means that there is some loss of substantive protection, though someone takes the view that it is not significant. That is not the same as the principle the Prime Minister’s foreword set out.
Will the Minister respond to the following questions? First, will he confirm that the Government no longer contend that disapplying, excluding the charter, will lead to all the same existing substantive protections, or do they accept that some of them will not exist? If so, will he tell the Committee either now or subsequently what those are? Secondly, I referred to the phrase “no significant loss of substantive protections”. Does the Minister agree that that leaves aside the question of whether procedural or other protections will be excluded as a result of excluding the charter from this protection? I ask the Minister to identify what the differences are and whether he accepts that there will be a loss of protection, even though the Government wish to say that it is not significant, so that the Committee can judge. Also, he will need to say, please, why that meets the objective the Prime Minister set in her foreword to the White Paper.
Lord Brown of Eaton-under-Heywood
I promise that I will not intervene again—I loathe intervening. But does the noble and learned Lord agree, although he proposes the domestication of the charter, it will still be necessary in future to decide what is within the ambit of what used to be EU law, because that is where the operation of the charter is presently confined—or does he suggest that now it opens up and encompasses all UK law, so that it is a wider application than it was originally? Are we going to have to go again through the impossible exercise, notoriously uncertain in application, of having to decide what is specifically and directly within the ambit of EU law in future as well?
Lord Goldsmith
I am grateful to the noble and learned Lord and I know that this is a point that troubles him, but he should bear in mind that what we have in Clauses 2, 3 and 4 of the Bill are provisions to bring specific aspects of EU derived legislation and EU direct effect legislation into UK law. That is the Union law that will continue, and that is what is defined as retained EU law—and it is to that retained EU law that the charter will continue to have effect under the scheme that I advocate to your Lordships, not to anything else or more broadly UK law.
Lord Brown of Eaton-under-Heywood
So the right to dignity would exist in the context of EU law, but not otherwise? Is that really how it is intended to work? Can the noble and learned Lord give an illustration of a case that will succeed under the right to human dignity in future—I mean, there has not ever been one in the past that has succeeded under that—when otherwise it would fail?
Lord Goldsmith
The noble and learned Lord knows that I took Article 1 as an example only because it is the very first article in the charter. I have respectfully invited noble Lords to look at the Joint Committee on Human Rights report, where the committee goes through each of the articles and through what the Government have said in relation to them, and identifies where they find place already in existing, enforceable UK law, and where they do not. It is where they do not that we are concerned with, and where they do not that there will be the very gap that the Prime Minister has said should not exist.
There is the further problem that, even if the rights survive, they will survive without the enhanced status and protection that they currently have. They have an enhanced status at the moment because of the 1972 Act and because of EU membership, but from the date of this Act they will only survive in a delegated form and be amendable by delegated legislation. They are not protected from being amended or removed by delegated legislation.
Compare the position in relation to the ECHR and the Human Rights Act. The Bill says in three places—in Clauses 7(7)(e), 8(3)(d) and 9(3)(d)—that the Human Rights Act is protected from amendment or revocation. The classic civil and political rights, but no more, which are, rightly, protected by the HRA, are protected from being amended other than by primary legislation to which this House and the other place have specifically agreed after proper scrutiny. However, none of the rights underlying the charter will be protected in that way, unless they find themselves within the ECHR, which is only some of them. That is unacceptable for many people.
Lord Hope of Craighead (CB)
I find this very difficult to understand. If you look at the charter, you find reference to the Union in item after item. It begins with a series of rights, but as soon as you penetrate further you find that it is closely related to membership of the Union and things that are guaranteed by its law. If I understood the noble and learned Lord correctly, he wants the charter to be brought in and protected against that kind of amendment in the same way as the Convention on Human Rights. This charter will have to be largely rewritten if we introduce it into our law, but it is not designed for the kind of situation we are facing after Brexit. It is designed for use within the Union and to be interpreted by the CJEU. I simply do not understand how the system is intended to work if it were brought into our law in the way the noble and learned Lord is suggesting.
Lord Goldsmith
The noble and learned Lord will recall that, whenever he opposed me with that argument from his position in the House of Lords or Supreme Court, I did my best to try to explain why there is an error in his thinking. With respect, I do the same here. If one takes, for example, one of the rights in the charter which does derive from Union law, is it to be said that although it is going to be transposed into our law as an EU retained law, it will no longer be subject to any of the protections that it has at the moment through being subject to the charter? It does not mean, as the noble and learned Lord, Lord Brown, suggested, that all UK law will be subject to this protection. It does mean that that law which is currently subject to that protection will continue to be so unless and until it is amended. That is the way that one gives effect to the intention that the law should be the same the day after Brexit as the day before.
I want to underline that we are talking about the extent of substantive protections; other protections and their extent; and the lack of enhancement of rights. These are all distinct points. I will also refer to the loss of the effect of charter principles. Noble Lords who have studied the charter will know that as well as rights there are principles. The principles are more aspirational, but they guide the legislator and that is a useful thing to have. Even leaving that aside, the other items I identified—the substantive protections, their nature and their enhancement or lack of it—are all things which mean we will not have the same protections after exit day as we have at the moment.
Lord Faulks
Is the noble and learned Lord telling the House that these principles are going to be actionable on their own?
Lord Goldsmith
The noble Lord knows that that is not the position in relation to the principles: they are guidance and aspirational. I am not spending a lot of time on them, although some of the NGOs have. I will give one example. There was a case in which the EU’s proposed legislation in relation to plain packaging of tobacco products was challenged in the courts on the grounds that it contravened freedom of expression. One of the things that the court looking at that noted was that the charter provided for a high degree of public protection in terms of health. I hope that all noble Lords agree with that sentiment, whether or not they agree with the result of the case. That is an example of where the principles come into effect.
Lord Lamont of Lerwick
I apologise for interrupting the noble and learned Lord a second time. We have listened to what he has said with great care. He has spoken for 34 minutes. He said that he would answer the question I posed at the very beginning of his speech—namely, why he had altered his mind when previously he had tried to keep the charter out of the Lisbon treaty, when he then said that it ought to have no direct domestic effect. Why has he changed his mind?
Lord Goldsmith
My Lords, I was about to come to that and I am grateful to the noble Lord.
Lord Goldsmith
I said that I would come back to it, and that is what I intended to do. A number of things have happened since the charter was drafted, as I said on Second Reading. The courts have referred to provisions of the charter and have given them effect. The decision was made to give the charter legal effect, which was not the way we started the negotiation. That is what happened in the Lisbon treaty, but that was not the original intention. That is what we argued against at the time, precisely so as to avoid the situation in which the courts were in a position to give effect to rights that we had not expected them to give effect to. That is what changed. That is why we now have a situation, where, as I have said, in a number of cases the courts have said that the charter has an effect and provides enforceable rights to individuals.
I conclude. The Joint Committee on Human Rights considered that the Government’s decision to exclude the charter, while effectively retaining nearly all other EU law, was taken without having undertaken a comprehensive analysis of the implications for the protection of rights. I cannot say whether that is right, but this amendment would require a focus to be given to that so that we can see what the correct analysis is and what the right way to proceed is. I beg to move.
Viscount Hailsham
My Lords, I wish to speak to Amendments 14A, 20A and 25A in this group, which stand in my name. I apologise for the absence of my noble friend Lord Bowness, who has put his name to a number of amendments but cannot be here because of weather conditions. He has asked me to apologise to your Lordships for his absence.
The purpose of the three amendments standing in my name is to ensure that the terms of the charter, if incorporated into domestic law, are capable of amendment by Parliament. This may be implied by the other amendments, but I think not. I listened very carefully to the noble and learned Lord. While there is a capacity to remedy deficiencies by regulation, there is no capacity to enable Parliament to mount a careful scrutiny and amendment of the charter. Therefore, the purpose of my amendments is to make it explicit that the charter, if incorporated into domestic law, is subject to parliamentary scrutiny and amendment.
I do not want to say very much by way of a general justification for the need to incorporate the charter; I am conscious that the noble and learned Lord who has spoken has much greater expertise than I. I know that the noble Lord, Lord Pannick, will probably speak. He, too, has much greater knowledge of this than I. I am but a journeyman lawyer and I have never had to wrestle with the charter’s significance in domestic terms. However, I noticed last week in the Times that Professor Bogdanor made a very powerful case for not scrapping the rights. The important thing that your Lordships need to keep in mind is that the charter provides a number of rights and remedies not found elsewhere in our domestic law. That point was made by the noble and learned Lord.
Lord Lamont of Lerwick
The reason that the Labour Party says that nationalisation of the railways would cost nothing is that the shadow Chancellor thinks that financing things by bonds is costless. That is what he has said.
Viscount Hailsham
Yes, I know that is what he has said but I ask noble Lords to think about the impact on those who will lose their assets. That is the point I am making. I agree with my noble friend but my point is: what about the position of those who lose their assets?
Viscount Hailsham
I am just going to finish this point and then I will give way. It is at that point that Article 17 of the charter comes into play. As the Committee will know, Article 17 provides that property is to be protected and, furthermore, that rights of compensation are to be paid. This is the protection that this House would be very chary about giving away. I give way to my noble friend.
Lord Faulks
My noble friend will know that Article 1 of the first protocol of the European convention does precisely the same thing.
Viscount Hailsham
So there is an overlap, and the question is one of remedies. As my noble friend will know, the remedies under the charter are probably more effective than the remedies under the convention, and that is the point that the noble and learned Lord was making.
Lord Blencathra (Con)
My noble friend seems to be saying that we need to incorporate this into British domestic law to protect ourselves from an extremist, wicked Government, but surely if such a Government were elected, one of the first things they would do would be to scrap this law using their parliamentary majority.
Viscount Hailsham
That would have to get through both Houses, which would be at least some check on the process. The point I am making is not quite the point that my noble friend has interpreted. I am saying that, if the charter is to be incorporated into domestic law, it has to be the subject of parliamentary scrutiny and amendment, and that is the only basis on which the charter should be incorporated into domestic law.
I accept the noble and learned Lord’s point that a number of aspects of the charter are entirely irrelevant and are hinged on our membership of the Union. Articles 44, 42, 43 and 39 are examples of that. There are also articles in the provision of the charter that many of us would disagree with. The noble Baroness, Lady Deech, has indicated that she does not like many of them, and I happen to agree with her. I heard my noble friends Lord Howard, Lord Lamont and Lord Blencathra chuntering away, and I agree with them: there are many things in the charter with which I disagree. But I am saying that if it is to be incorporated, it should be incorporated in such a way as to enable this House to scrutinise each and every one of its provisions and amend as appropriate.
I remind the Committee that one reason many noble Lords and others wish to withdraw from the European Convention on Human Rights is that the judge-made interpretation of the text is incapable of amendment by Parliament. I wish to avoid that criticism being made of the charter if it is to be incorporated. The suggestion in my amendment to make the charter, if incorporated, subject to parliamentary scrutiny and amendment is perhaps the only example in this sorry business of being able to cherry pick, or to have your cake and eat it.
Lord Pannick
My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?
Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.
Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.
Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.
Lord Brown of Eaton-under-Heywood
In those circumstances, does my noble friend agree that the result of that is that we are henceforth, instead of treating retained EU law as part of domestic law—having discarded the separation and shed the notion that it is a distinct body of law—still going to have to wrestle with all the difficulties inherent in distinguishing operations or actions pursued in the ambit of EU law from those that are not? Will that problem continue into the distant future?
Lord Pannick
My answer is very simple: yes, of course. The whole point of the Bill is to read across the EU law which currently applies to this country and for it to continue to apply. That is the Government’s objective. It is their objective because they—very sensibly, in my view—wish to ensure legal certainty and clarity on exit day. That is exactly the legal position. It is not my idea; it is the Government’s intention in this Bill.
As to all the concerns about what the charter might or might not do, one should bear in mind that the charter has been applicable in the courts of this country for many years. No one has suggested that there is some case or principle which is so objectionable that we need now to make an exception for the charter, when the Government’s intention in the Bill is to read across all retained EU law to ensure a functioning statute book that preserves the legal position and ensures clarity, certainty and continuity. That is what this Bill is about.
Lord True (Con)
There is, I think, a fourth question. As a layman, I have been listening for 51 minutes to extensive legal argument on these questions—and who am I to judge, in a sense?—and I was persuaded by the distinguished arguments of two former Law Lords that I heard. The noble Lord, Lord Pannick, referred to three arguments but there is surely a fourth argument which has not been adduced by any of the noble and learned Lords who have spoken, and that is that 17.4 million British people voted to leave the European Union, and that means coming out from under the jurisdiction of entities which are not subject to the Crown, Parliament and UK law.
The noble Lord, Lord Pannick, smiles and laughs. All the arguments that we have heard in this Chamber over the past two days in Committee come from those who do not wish that to happen, but the fact is that the British people sought a future in which they and their Parliament will make UK laws, and UK judges, under the Crown, will judge those. We have no need of any charter which has been made outside, something that the noble and learned Lord, Lord Goldsmith, argued for repeatedly when he was Attorney-General.
Lord Pannick
I am grateful to the noble Lord. The reason I am smiling is that he clearly has not read this Bill. The Government’s Bill reads across the entire content of EU law that applies as at the exit date; it becomes part of our law. It is the whole point of the Bill.
Lord Pannick
I am sorry; let me complete the point. The noble Lord has made a point and he is simply wrong. The Government’s Bill reads across the whole of EU law. It removes the jurisdiction of the European Court of Justice—I do not suggest to the contrary—and the amendment of the noble and learned Lord, Lord Goldsmith, has absolutely nothing to do with the role of the European Court of Justice. It will be the role of our courts and our judges to decide from now on the meaning and effect of the retained EU law which this Bill reads across. It will then be in later legislation for Parliament, as it sees fit, to amend or repeal that law. But as the noble and learned Lord, Lord Goldsmith, indicated, the Prime Minister said that this Bill is not an occasion for changing the law, it is an occasion for ensuring that on exit day we have a workable, certain, continuing system of law. The real question is why this Bill should make an exception for one element of European Union law, the charter. There is no justification for that whatsoever.
Baroness Deech (CB)
My Lords, it does the opposite of what my brilliant former pupil the noble Lord, Lord Pannick, has said. The inclusion of the charter brings with it uncertainty. It is a Trojan horse because if you carry on applying it, its meaning depends on the evolving case law of the ECJ, which has an objective of bringing further integration and other objectives to do with Europe that are not our objectives. Our judges have said that they want certainty after Brexit, but to include the charter, which is evolving all the time, without our scrutiny will give our judges sleepless nights because they will have to follow the twists and turns in EU law. I come back to the fact that the nub of this is that it will plainly give our judges the right to set aside and invalidate UK law. The noble and learned Lord, Lord Goldsmith, mentioned with approval the Benkharbouche case, where part of our sovereign immunity law was set aside by the Supreme Court on the basis of charter supremacy. That was actually dangerous because if other countries start setting aside immunity law when dealing with our diplomats, we will be in a very difficult situation indeed. I would not assess the Supreme Court by the outcome of what it says; we assess courts by the way they are appointed and the integrity of our judges. The retention of the charter is a recipe for confusion, uncertainty and the setting aside of British law according to ECJ judgments.
Lord Pannick
I am sorry to say to the noble Baroness that that is exactly what this Bill achieves in relation to all other retained EU law which is read across. This will be under the control of British judges. Under the Bill it is entirely a matter for them what weight, if any, they choose to give to judgments of the European Court of Justice. The charter of rights is no different from any other provision of EU law in that respect. The noble Baroness mentioned certainty. What I think provokes uncertainty for judges is the approach in this Bill. It is not simply that the charter of rights is excluded by Clause 5; the clause goes on to say that undefined,
“fundamental rights or principles which exist irrespective of the Charter”,
are retained. There is a conflict in the approach taken on this issue. I suggest to noble Lords that the correct approach is that which has been recommended to the Committee and to the House by your Lordships’ Constitution Committee: that there is no justification whatever for distinguishing between the charter of rights and all other aspects of retained EU law. I support the noble and learned Lord, Lord Goldsmith, in what he said.
Lord Wigley (PC)
My Lords, I rise to speak to Amendment 35 standing in my name and that of the noble Baroness, Lady Jones of Moulsecoomb, which would leave out subsections (4) and (5) and insert the words as set out in the amendment. The objective of Amendment 35 is to retain the charter rights in UK law and afford them the same level of protection as those in the Human Rights Act. It has similar objectives to some of the other amendments that have been proposed. I must admit that I address the House on these issues with some trepidation because I am not a lawyer, although I have taken the advice of lawyers in drafting this amendment.
The amendment provides for what I hope is a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice rights and protections on the altar of ideology. Removing the European Charter of Fundamental Rights from EU retained law runs counter to the stated purpose of the Bill, which is to facilitate the wholesale transfer of EU law into the domestic statute book. It also contradicts the Government’s assurances that the same rules will apply on the day before exit as on the day after. The Government’s justification for this anomaly is to claim that the charter is unnecessary and that its omission will not result in any loss of substantive rights protections.
In an attempt to support their public assurances to that effect, the Government have since published a right-by-right analysis that they say demonstrates that each right can be found in domestic law. The analysis is unpersuasive. According to Liberty and Amnesty International, it is perfectly possible to retain the charter and deal with any redundant sections after exit just as with the rest of retained EU law, as has already been mentioned. The Equality and Human Rights Commission has obtained the opinion of senior counsel Jason Coppel QC on the Government’s analysis of the charter. His advice is that the loss of the charter will lead to a significant weakening of human rights protection in the UK. This is because, first, there will be gaps in protection, for example in relation to children’s rights, data protection and non-discrimination. Secondly, many rights will no longer be directly enforceable, leading to further gaps in protection. Thirdly, many remaining rights could be removed by Ministers exercising delegated powers.
A particular concern that I would like to highlight is that Brexit will remove any children’s rights and safeguards currently offered by the European Charter of Fundamental Rights, which imposes a constitutional obligation on member states to adhere to children’s rights standards when implementing EU law. The EU’s Court of Justice now routinely refers to the charter when adjudicating on cases involving children.
Baroness Deech
I am reluctant to interfere. My noble friend Lord Listowel, who is sitting next to me, knows more about child law than anybody. I must point out that the protection given to child law in the charter is very crude indeed compared with decades-old jurisprudence in this country. Very recently, the Children and Families Act 2014 and the Children Act before were a nuanced and balanced approach to the protection of children, their education and their rights to contact with both parents. They are infinitely more subtle and pay more attention to their welfare than this kind of sledgehammer approach from the charter.
Lord Wigley
I hear what the noble Baroness says. All I would say is that by ensuring that we incorporate things into UK law, we then have an opportunity, democratically and in an accountable fashion, to make modifications as may be necessary. The danger is that we will throw out babies with bathwater.
Again, the Government have stated that the removal of the European Charter of Fundamental Rights from UK law,
“will not affect the substantive rights from which individuals already benefit in the UK”.
The White Paper notes that many of the rights protected in the charter are also found in UN and other international treaties that the UK has ratified, including the UN Convention on the Rights of the Child. However, in a centralised context there is no specific statutory provision requiring respect for children’s rights in lawmaking, nor a general requirement to safeguard and promote the welfare of children in the UK.
Furthermore, this particular argument has a specific Welsh angle. Stronger protection for children’s rights exists in the devolved nations, specifically in Wales. The Rights of Children and Young Persons (Wales) Measure 2011 imposes a duty on Ministers to have due regard to children’s rights as expressed in the UNCRC when exercising any of their functions. To achieve that obligation, since 2012 the Welsh Government routinely undertake child rights impact assessments on proposals for Welsh law or policy that will affect children directly or indirectly.
The withdrawal Bill will limit the scope of the devolved nations to alter law within the current devolution settlement and brings competence on matters that have been arranged under EU law back to Westminster. This would prevent the devolved nations from exercising their powers to withstand or amend legislation from Westminster, even where this contradicts their own commitments to children’s rights. I submit the amendment to the Committee as a contribution to the debate on these most important considerations.
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise as a co-signatory to Amendment 35. I usually come to these debates feeling that I understand all the issues involved and, within minutes, I am confused by contradictory legal opinions and by arguments from across the House on issues that are not even relevant to the Bill. So can we go back to basics? I feel like the woman on the Clapham omnibus who is just seeing common sense. The fact is that the Government promised to bring over all EU law and are choosing to exempt this aspect of it. I do not understand that; they break a promise at their peril, because people out there will not understand.
I could not do better than repeat some of the things said by the noble and learned Lord, Lord Goldsmith, about the Equality and Human Rights Commission. Let me read again what it says:
“The simplest and best way of achieving the Government’s intention that substantive rights should remain unchanged and ensuring legal certainty is to retain the Charter rights in UK law”.
I do not understand why the Government do not see that as well. The legal opinion produced for the Equality and Human Rights Commission by Jason Coppel QC, which we have heard of already, states that failing to keep the charter will result in,
“a significant weakening of the current system of human rights protection in the UK”.
Why is that not accepted? It is a legal argument. Have the Government read that opinion? If so, will they re-read it and give us a considered response to it? It clearly has a validity that I doubt the Government’s position has.
The noble Viscount, Lord Hailsham, spoke about being on the centre ground, which I did not entirely agree with. I feel that I am on the centre ground; I feel that I, here, can at least express things that I hear out on the street. Out on the street, people think that the Government are going to keep all EU law and then amend it when it comes. That was the promise, so why are the Government refusing to fulfil it?
Lord Kerslake (CB)
My Lords, I want to speak in favour of Amendment 34 and in support of the other amendments in this group that seek to retain the EU Charter of Fundamental Rights in UK domestic law. I did not speak at Second Reading, in good part out of recognition of a long list of speakers. I hope that the Committee will accept my apologies and my contribution this evening.
The key question here is not whether one was for or against leaving the European Union, nor is it whether one agrees with every aspect of the charter; neither of those points is relevant to this debate. It is whether there are sufficient grounds to exclude the charter from being transposed into UK law in exception to every other law being so transposed. In my view, there is no argument that, if we exclude it, we will see a weakening of our rights. That is very clear from the analysis that we have had from the commission and others.
There is no doubt that excluding the charter will lead to confusion and uncertainty in the law—that, too, is made clear in the analysis by other lawyers. So the question one has to ask is: are the grounds for excluding the charter compelling? I have not been persuaded that they are.
When Ministers say that something is not necessary, I get nervous. It usually means that it really is necessary but they do not want truly to state the reasons why. That is the reality here. The hard truth is that people speaking against the charter’s inclusion do not like it. That is a perfectly reasonable position to take but, if they do not like the charter, that is a debate for further legislative change in the future; it is not a reason for accepting it now.
The public expect us to act with integrity and to do what it says on the tin in relation to this Bill. The two things that have been very clear right from the off on this Bill are that it will not see a diminution of rights and it will not try to change legislation from the EU but will transpose it, followed by a proper debate in this House about where change is needed. Unless those advocating the charter’s exception can come up with compelling reasons why it cannot be incorporated, the balance of argument must be for it to stay and be transposed into UK law.
I say to the Government: when you are in a hole, stop digging. This should be agreed; it is a straightforward amendment that we can make in this Parliament. It does not, mercifully, await the outcome of the deal or anything related to it; it is a simple matter of integrity in the process that we are carrying out through the Bill. We should support the amendment.
Lord Cashman (Lab)
My Lords, I speak as a co-signatory to Amendment 63A, which is also in the name of the noble and learned Lord, Lord Wallace of Tankerness. I will be very brief, especially in a room full, it seems, of Law Lords and lawyers. I come to this in perhaps a very different way from others. As a 67 year-old man, I have spent most of my life not having equality before the law or the equal protection of the law; that is, as a gay man. Most of my rights—the equality I now enjoy—have been achieved largely by dragging legislative changes forcefully from Governments who did not want to give them to us or to many other misrepresented and defamed minorities. When it comes to human rights and civil liberties, you can never have enough belt and braces. Therefore, I do not understand why the exception to the carryover of EU law is solely in relation to the European Charter of Fundamental Rights and the general principles.
I promised to be brief and brief I will be. Tonight has illustrated to me more than any arguments that have come from a swathe of NGOs, such as the Bar Council, the Law Society, the Royal College of Nursing and others, that we cannot bring forward a change of such magnitude as this in a Bill that is supposed to retain all the EU law and then amend it afterwards. If we are to change the European Charter of Fundamental Rights, it should be done with full public scrutiny by both Houses, through primary legislation and the full engagement of civil society.
Let me finish on this. I talked about the rights that I and others have achieved that have had to be dragged. I want people to have easier access to the courts. If the Charter of Fundamental Rights in some way, through one clause or another, achieves that, I will go to wherever I go when I lay my head finally with great peace and rest. Why? Because the European Union was born out of the ashes of the Second World War—the ashes from crematoria that were dotted across Europe because people were taken there because of their difference, their perceived difference. Homosexuals were worked to death in concentration camps alongside trade unionists and many others. Yes, it is emotional but when you are denied and deprived of your human rights, it strikes at the very core of your being. When you are not given the equality that others have under the law, it strikes at your very existence.
These rights have been achieved and enumerated not only in conventions. Sadly, I have heard laughter rained upon people who have tried to defend the charter and the concept of human rights tonight, and I do not take that lightly. These rights that have been achieved have often been forced back against those who have sought them. They have been achieved, often, against the will of Governments and across the sacrifices of generations. Do not put them aside lightly. I urge noble Lords to support this group of amendments. If we are to change anything, let us do it through primary legislation or, at the very least, in the same way that we amend other retained EU law.
Lord Faulks
My Lords, I am sure that the Committee will be greatly moved by what the noble Lord, Lord Cashman, has said. Everyone is concerned to protect human rights but we must not fall into the trap of saying rights are good and therefore, more rights are better.
The role of the Charter of Fundamental Rights in our law has been an uncertain one. The noble and learned Lord, Lord Goldsmith, has had a great deal to do with it and knows a great deal about its creation; he played a part in its drafting. He got his retaliation in first at Second Reading and today, knowing that it was going to be pointed out to him that he was not initially an enthusiast for the charter because of the apparent disorder it might create in the rights architecture of our law. There is nothing wrong with changing your mind. It is quite a fashionable course for the party opposite to take at the moment. My difficulty is not with the change of mind but the fact that I agreed with his original stance, which was that adding the charter, which was designed for an entirely different purpose, ran the risk of undermining the clarity and cogency of our law.
I have some experience of the way rights are played in court. I was part of the Commission on a Bill of Rights, together with the noble Baroness, Lady Kennedy, who is in her place. I was also a Minister with responsibility for human rights. I have considerable experience over the past 20 years, following the incorporation of the European Convention on Human Rights by the Human Rights Act, of acting for public authorities which have been sued for alleged violations of those rights. Rights are very difficult to interpret, whether they come from a declaration, a charter or a convention. Inevitably they tend to be expressed in general terms and leave a great deal to individual judges to interpret and try to make practical sense of.
Most of the rights contained in the charter—obviously, some of them are inappropriate—are not controversial in what they seek to protect. What is far more controversial is how these rights should be interpreted. My right may be in conflict with your right. The protection of my right may have to be sacrificed or modified by the need to protect others’ rights or the powers that the state may inevitably have which affect or modify those rights. Of course we need to protect children, the disabled and the vulnerable in society, as a number of noble Lords have pointed out. Most of what we do in Parliament is concerned with the definition of circumstances in which individuals’ rights should be protected. A number of noble Lords have identified the right to dignity as being important since it is not reflected precisely in the European convention. We can all agree that it is important that citizens are treated with dignity but how does one translate that into anything meaningful in terms of the courts providing remedies?
The difficulty is that rights are now regarded as trumps and if we are to retain the charter, as seems to be the purport of the amendments in this group, we will have the rather strange situation of existing domestic law, whether it comes from the Human Rights Act or elsewhere, being supplemented by the charter, which will have a particular status. As the Government have made clear, the charter was never supposed to be a source of rights per se but a reflection of the rights that are generally protected by the European Court of Justice. It would be peculiar for our courts to continue to rely on the charter, which was designed to apply to EU institutions in interpreting the scope of EU law, after we have actually left the European Union.
The Advocate-General has occasionally made remarks about the charter. At its highest it has been described as “soft law”. If we need to protect or further protect rights, is that not a matter for Parliament or even judges interpreting the common law? Are we really so impotent as a Parliament that we have to rely on the relatively recent EU charter to provide such protection? Some of the amendments seek to turn soft law into hard law with application after we have left. This Bill is surely to provide clarity and coherence in the law after we have left the EU. Retaining the charter will do precisely the opposite.
I regret that I do not agree with various observations made at Second Reading that the Human Rights Act provides only for declarations of incompatibility. It does in fact provide damages for violations of the convention. I suspect the reason the charter has attracted such vigorous support is the rather egregious way it has been singled out for attention in the Bill. The reason it has been so singled out is the uncertainty of its application by the courts so far, and the Government’s desire to be absolutely clear that in the difficult task of interpreting the law that the judges will face, the charter can safely be ignored.
My amendment, which I come to in conclusion, is an attempt to provide some clarity as to what role, if any, the charter may have in the future. In so far as the charter is part of retained law—I appreciate that the definition of retained law is also the subject of debate—there seems no harm in it having some continued existence, in so far as it is necessary for the interpretation of that retained law; hence my amendment. What I find wholly unconvincing is the argument that it should somehow remain, as a non-native species, providing a free-standing source of rights—as in the Goldsmith amendment—or that it should be grafted on, subject to amendments to the Human Rights Act, as in the Wigley amendment. Who will benefit if the charter remains part of our domestic law after exit day? I fear it will not be those whom we rightly wish to protect; it will be the lawyers, and surely we do not want that.
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.
Lord Faulks
The Government’s position has been made quite clear: they have no intention of repealing the Human Rights Act. It is perfectly true that the previous Government said that they would consult on the question and bring in a British Bill of Rights, which would not mean departing from the European convention. Of course, I understand that there are those who are suspicious of this Government’s motives—I do not speak for the Government—but if a Government were hell-bent on getting rid of human rights, they would of course be able to get rid of the charter as well. I do not accept the sinister interpretation of the noble Baroness. The intention is simply to achieve clarity; that is what the Bill is about.
Baroness Lister of Burtersett (Lab)
The Conservative manifesto said:
“We will not repeal … the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament”.
When the Minister replies, can he give us an assurance about the long-term commitment of the Conservative Party to the Human Rights Act?
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.
Lord Davies of Stamford
My Lords, I do not think I am going to give way to the noble Lord because I have been trying to speak. In the course of this debate, we are not actually going—I shall give way to the Chief Whip.
Lord Lamont of Lerwick
My Lords, I shall speak to Amendment 14, the effect of which is to retain the charter as part of domestic law and to retain EU law under which claimants would be able to have domestic legislation struck down on the basis of incompatibility with the charter. Some noble Lords have expressed the view that they were baffled by the exclusion of the charter from this legislation, but I felt that the arguments were put very simply and cogently by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, at Second Reading when he simply pointed out that the charter is only one part of our extensive framework of human rights, that there would be a risk of confusion because of conflict with the ECHR and that what this was doing was complicating the situation to no good purpose.
Furthermore, the Secretary of State for Exiting the European Union has produced a memorandum showing how existing rights are being provided for in the legislation and in retained law. He has also gone further and said that if anyone can provide specific examples of rights that are not provided for, he will give the matter due consideration. Various people have suggested various things that may or may not be suitable for inclusion, but they will no doubt be considered by the Secretary of State and could be considered for primary legislation.
I asked the noble and learned Lord why he had changed his mind about the incorporation of the charter, which he and Prime Minister Blair strongly opposed in the Lisbon treaty. I do not want to go over that, as I think I made my point, but I suggest to the noble and learned Lord that he had very good reasons for excluding it, and that now is an opportunity—
Lord Goldsmith
In fact, this country accepted that the charter would become part of EU law in the Lisbon treaty—it is the opposite of what the noble Lord said.
Lord Lamont of Lerwick
Against the noble and learned Lord’s will. There was also an attempt to get an opt-out, which the European Court of Justice said was not valid. I see that the Minister is agreeing with me. I believe that is a correct account of what happened. It was struck down. The case in which it happened was, I think, Aklagaren v Hans Akerberg Fransson.
Lord Pannick
Would the noble Lord accept that there are many areas of EU law which this country has opposed but which have nevertheless become part of EU law? This Bill seeks to exclude none of them from retained EU law, other than the charter. Why is that?
Lord Lamont of Lerwick
That is very much my argument. For reasons that I wish to develop, I agree very much with the noble Baroness, Lady Deech, and what was said by my noble friend Lord Faulks about the confusion and conflict that this will cause between the role of the European Court of Justice and our own courts. The President of the Supreme Court has already called for further clarification of the relationship the Supreme Court will have with the European Court of Justice. It seems to me, for reasons I am about to give, that this would be made even worse if we incorporated the charter into the Bill and into UK law.
The retention of the charter would lead to real problems of uncertainty and confusion. Above all, retaining the charter would give the ECJ even more continued influence over our courts. I accept what the noble and learned Lord has said, that there is going to be a relationship for a while with the jurisprudence of the ECJ, but incorporating the charter will give much more opportunity for what people have called judicial adventurism from the European Court of Justice, as it continues to expand the interpretation of the charter. This is not an obsession of Conservatives. I draw the Committee’s attention to what the late Lord Bingham, I think, said in evidence to the House of Lords EU Committee in 2016. He said that although,
“the European Court of Human Rights is a very benign institution … the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.
That is a reference to the expansionist activities of the ECJ. The charter, as many people know, is extremely loosely worded. The risk of leaving the charter in place is that it allows the ECJ, while it still has jurisdiction over us and our Supreme Court, to expand the charter into new areas. I am not suggesting that the rights we have are frozen for ever or should not be expanded, but merely that that is something that should be decided in this country by our Parliament.
I am also concerned, because of this and the expansion of activities of the ECJ, that if the charter were incorporated our courts would acquire the power to strike down statute on the basis of incompatibility with the charter, which is the point that the noble Baroness, Lady Deech, was making. The noble Lord, Lord Pannick, referred to the Factortame case, which was a notorious example where an Act of Parliament was actually struck down. We do not want to create another situation in which domestic courts can strike down Acts of Parliament.
It is the European Court of Justice that interprets what the charter means within the European Union, so if the charter is incorporated into law, what relationship is then going to exist between the Supreme Court and the ECJ? As the ECJ continues to develop its interpretation of the charter, we would be on a road where we had to take it more and more into account. On the basis of what has been said, we must avoid that confusion.
If there are gaps in the rights, we have an opportunity to incorporate them with primary legislation. For example, people have been saying in some of the debates that there are various matters relating to the environment that are not covered. However, we will have a new environment Act and a new environment agency. That seems to me to be the way to cope with any rights that are not fully covered, and it is far better to avoid the confusion of incorporating the charter into UK law.
Lord Davies of Stamford
My Lords, I am being persistent this evening because I want to point out the glaring contradiction in the views that have been put forward in support of the Government and of the Bill as it currently stands. The noble Baroness, Lady Deech, says the Charter of Fundamental Rights is a pernicious and dangerous document—“dangerous” was her word—that would lead to courts in this country setting aside laws that they did not like, which would be scandalously contrary to British traditions of constitution and law. On the other side, we have had people, and the noble Lord, Lord Lamont, is the latest example of this, saying the reason why we cannot have the Charter of Fundamental Rights in the Bill and transferred into English law is that it is unnecessary and would be confusing because all the rights are there and some of the rights are already in the corpus of British law. Noble Lords must make up their minds: they cannot say something is a radical and pernicious measure with substantial negative consequences but at the same time say that it has no effect at all and is merely otiose. There is a fundamental contradiction there. The noble Lord, Lord Pannick, noticed the same thing but was not quite so explicit about it as I have been.
Lord Davies of Stamford
There is a confusion in this country that comes up quite frequently. We like to think—we are brought up to think it—that we do not have a written constitution in this country and we do not have constitutional laws. That is totally untrue: the Bill of Rights is a constitutional law; in my view the Bill that we are now trying to repeal, the European Communities Act, is a constitutional law; and the Human Rights Act is certainly a constitutional law. By “a constitutional law”, I mean a law that is generally regarded as foundational and is prayed in aid before the courts and referred to in court judgments across a whole range of subjects. Because of that contradiction, we do not really recognise what is going on and we get ourselves into a frightful confusion.
Unlike the noble Baroness, Lady Deech, I am not shocked and offended by the idea that a court could put aside a Bill that was contrary to existing law. The remedy, of course, is quite simple: Parliament can change either the existing law or the previous one. The noble Viscount, Lord Hailsham, my Lincolnshire neighbour, came out with the right solution when he said that the check and the important constitutional protection against a Government with a parliamentary majority acting entirely irresponsibly or even tyrannically is that any Bills they put forward would have to go through both Houses. In that context, one hopes that the House of Lords would act as a guardian of the constitution and be prepared to stand up to the Government and wait for them, if necessary, to bring in the Parliament Act to override it. That would be a considerable check and balance, and it is a very important role of this House that we are there as a long-stop in such circumstances. The noble Viscount, Lord Hailsham, came up with the right solution and I am sorry that I did not sign his amendment, but I certainly approve of it very much, and if he comes forward with something like it at Report, I shall be happy to support it.
The Earl of Listowel
My Lords, it is very late and I shall be brief. My noble friend Lady Deech is absolutely right: we can be very proud of the children’s legislation we have in this country. The Children Act 1989 is an outstanding Act for children. We are good at many things: we have great lawyers, great scientists and great soldiers in this country. Unfortunately, we do not do so well at implementing the law. I am particularly concerned here about children’s rights. Let me quickly give some examples.
I have talked to families with a disabled child trying to get access to early years education for their child. They get turned away again and again because the setting does not have the right equipment or staff to deal with them. Look at what is happening in the family courts. They are being overwhelmed by children being taken into care. Year on year, the number of children taken into care increases. Lord Justice Munby, the President of the Family Division, recently said that that is accelerating and that the family courts cannot deal with it. The All-Party Parliamentary Group has looked carefully at why that is over the past two years. It is because there just are not the resources in local authorities to support vulnerable families to stop their children being taken into care.
It is very interesting for me to read Article 24 on the rights of the child:
“Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”.
That right is being compromised day by day in this country. Children are being removed from their families because those families have not had the support they needed to make a go of looking after their child.
This is very difficult and the Government have very difficult choices to make, but if you talk to social workers and academics, you find that this right is being compromised day by day. I know that the Conservative Party, in particular, is concerned to see that families are strong and integrated. I am sure that the Minister will tell me on this article that there are already strong protections in British legislation to ensure that the best interests of the child are maintained and their families are supported to prevent this happening. What is happening on the ground, however, is that because social workers wish to safeguard the children, and because the threshold of access to a social worker is so high, they are getting to see the family when it is in crisis, when things have got to a terrible pass and they think that the interest of the child lies in removing the child from this terrible situation.
If we applied this principle properly, we would be intervening earlier to support those families. We see great examples of that. For instance, the family drug and alcohol court, which is expanding across the country, is supporting parents to get them off drugs and alcohol so that they can keep their children.
A number of important protections for children are laid out here: access to education and so on. I will have a look at the Joint Committee on Human Rights report to see what is exempted here. There is lots of good legislation for children in this country, but when I look at what goes on on the continent in terms of security of tenure in housing or quality of professional care for vulnerable children, I fear that so often they do so much better. My prejudice is that we need this sort of thing.
I worry about the elective dictatorship. We get small groups of very wise and intelligent people leading this country from the way we work constitutionally, and the breadth of experience, the people who get left behind, those just managing families, get forgotten about in the drive to do one or other very good thing which eclipses every other consideration. Being as explicit as one can about the rights of children and the protection for families can be very helpful. We will come back to this, and I look forward to debating it further, but on that specific article, I should be grateful for reassurance as to how it will be protected in future.
Lord Newby (LD)
Before the noble Lord sits down, I know how concerned he is about the rights of children, but I wondered whether he had read the joint submission from the Children’s Rights Alliance for England and Together (Scottish Alliance for Children’s Rights), which argues forcefully and at length, with many details, and gives many examples of why they wish to have the fundamental charter retained. Why does he disagree with them and wishes it not to be?
The Earl of Listowel
I am sorry; it is late. I would like in principle to retain the charter. The UN Convention on the Rights of the Child is not part of British law, and the charter has been a means of channelling the principles of the UNCRC into British law. We need that. The minimum age of criminal responsibility in this country is 10 years old; we can lock up children of 10 years of age. Even in Turkey—with respect to Turkey—it is 16, and 14 around the continent. We are really harsh with our children and we need such protections.
Lord Blencathra
My Lords, as the tail-end Charlie in this debate, I too shall be brief. I believe that there is nothing fundamental about this so-called charter. It was a political wish list cobbled together by the EU in the year 2000, incorporated into the Lisbon treaty in 2009, and opposed by every Labour Government Minister. In fact, Gordon Brown would not even go to Lisbon on the first day to sign it. He wanted to distance himself from it. It includes such meaningless waffle as the right to “physical and mental integrity”, and such wonderful new rights as the right to marry and the right to freedom of thought. As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, so cleverly exposed, my right to freedom of thought seems to apply only to the 20,000 EU laws. If I am thinking about any other UK laws, the charter does not seem to apply.
Of course, the charter contains the fundamental right to a fair trial. Well, 803 years ago, this noble House put the right to a fair trial in Clause 39 of the Magna Carta. That is the most important fundamental right of all, which we have had for more than 800 years. The Magna Carta was also known as the “Great Charter of Freedoms” and the late Lord Denning called it,
“the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”.
That is what our predecessors in this House did—not the King, not a foreign court but this noble House.
Lord Davies of Stamford
Does the noble Lord recall that the Magna Carta was in 1214, and that the first Parliaments began to sit in the 1270s?
Lord Blencathra
The Magna Carta was imposed on King John by the Barons, as I understand it—the Barons being Members of this noble House. The House did not exist in that form, but it was imposed by the Lords and the Barons. The House of Commons passed the Bill of Rights 350 years ago and imposed it on the sovereign, guaranteeing our rights to free elections, no taxes without parliamentary approval and free speech. The Bill of Rights passed 350 years ago by this Parliament formed the basis of the United States Bill of Rights and Bills of rights of other countries around the world.
Then just 70 years ago, we used our unique experience to write the European Convention on Human Rights—largely written by British lawyers. We wrote that for countries which had no history of our fundamental freedoms and had suffered the evils and degradations of National Socialism. What I am saying is that the worst indictment I make of the EU is that it seems to have destroyed the belief among parliamentarians, noble Lords and Members of Parliament that we are capable of governing ourselves and writing our own law.
There is nothing of any value in the Charter of Fundamental Rights which is not already covered in UK law or the European convention. If we find some great new right in the future and decide that freedom of thought must become a law, are we incapable in this House, in the other place and as British parliamentarians of drafting that? Are we so enfeebled and incapable that we cannot do it? If the Barons could do it 800 years ago, Members of Parliament 350 years ago and the British Government and parliamentarians did it for Europe 70 years ago, are we so incapable that we cannot do it now?
The people of this country voted to bring back control of our laws because they believed that Parliament was capable of making better laws than the EU. They believed that we are better at deciding on our essential rights than an ECJ judge from Bulgaria who has a law degree in Marxist-Leninist law—I have checked on that, and he has got a degree from Sofia on Marxist-Leninist law.
I happen to agree with the British people. I see the incredible wealth of talent in this House, with noble and learned Lords and Law Lords, and I trust our courts. We do not need nor want this charter. Let us wear once gain the mantle of our predecessors in the Lords and Commons, who gave us every freedom that has been worth fighting and dying for for the last few hundred years. We need the courage of the electorate, who trusted us to make our own laws once again. We should not let them down.
Baroness Ludford
There are several more speakers, I am afraid, including me.
Baroness Whitaker (Lab)
My Lords, in briefly supporting those amendments that seek to retain the charter, I owe your Lordships an apology. I ought to have declared that I am a member of the advisory board of the British Institute of Human Rights at Second Reading, but I forgot.
I am not a lawyer, but I respectfully submit that law is not primarily for lawyers, any more than water is for water engineers—it is for people to implement the central values of our democracy on their behalf, and the deprivation of rights and access to justice causes harm, unfair poverty, unfair unhappiness and, in some cases, unjustly shorter lives. That is the sort of thing we should be thinking of when we look at these amendments.
I shall just give three quick examples, much humbler than those of Mr David Davis. The general principles and the charter ensured that Mr John Walker could challenge and end pension inequality for same-sex couples. The charter and the general principles supported the recent case in the Supreme Court, which found employment tribunal fees implemented by the Government were unlawful. And the charter enabled the recognition of the importance of health as a fundamental right—not in our law—when tobacco companies challenged regulations to introduce plain packaging of cigarettes.
It seems extremely clear that dropping the charter will do away with protective rights and drop safeguards that have ensured justice in individual cases of injustice. It is individuals who we ought to be thinking about, and rights that would not otherwise exist that we ought to safeguard in the charter.
Baroness Ludford
My Lords, the Benches opposite have been well filled to harry the noble and learned Lord, Lord Goldsmith, about fundamental rights. Sadly, they were not here for the previous debate to speak up for achieving a fundamental right to safety and security.
I fear that parts of this debate have displayed a fundamental misunderstanding about the EU Charter of Fundamental Rights. There has been evidence of some quite muddled thinking. The charter is not a tool that extends the remit of EU law or promotes further integration; it protects citizens and businesses from abuse of the powers that EU laws confer on EU institutions and—I have to say to the noble Lord, Lord Faulks—on national Governments when they are implementing EU laws. So it is not just about all the EU institutions that we might leave; it is about achieving legal certainty and continuity. Deleting the charter means discontinuity by making substantive changes to the EU law that is retained in domestic law.
Baroness Lister of Burtersett
I will make one brief point that no noble Lord has yet made about Northern Ireland, which I know is of concern to many Members of this House. At Second Reading, citing the Bingham centre and Lady Hermon, I asked the Minister to explain how the requirement in the Good Friday agreement for an equivalent level of human rights protection in Northern Ireland and the Republic would be maintained if the citizens of the former could no longer look to the charter. In his helpful letter to Peers, the Minister pointed out that the agreement preceded the charter and, as the charter is therefore not referenced in the agreement, the Bill should not affect our obligations to it. But the point is about equivalence. If the charter now applies in the Republic and not in Northern Ireland, with the loss of various rights in the latter, I ask again how that equivalence is to be maintained.
Baroness Deech
I will make a point that has not been made before. The charter has never been scrutinised by this House. If it had been, we would not have this lack of clarity. I have more confidence in the ability of our Supreme Court to protect us than I have in the ECJ. Bearing in mind what the noble Lord, Lord Cashman, said, what a failure the charter has been across Europe. The Roma are being persecuted, migrants are not getting proper treatment, the leaders of Catalonia are being locked up and extremist, right-wing parties are on the march. Freedom House is marking down European countries; they are sliding away from human rights. I am not proud of the charter; it has not worked in Europe. We are much better off with something home-grown and administered by our Supreme Court.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, if I appear faint in my defence of the Bill it is due to a lack of food rather than a lack of enthusiasm. I am grateful for the opportunity to respond to this important debate and set out the Government’s position. I will start by making it clear that we are listening carefully to the debates on this issue, and will continue to do so.
The Government agree that protecting our rights and liberties as we leave the EU is of critical importance and it is only right that every detail of our approach is scrutinised. This has been a wide-ranging debate about human rights after exit, but it is worth remembering that the amendments before us relate specifically to the charter and the question of what role, if any, it should have in domestic law when we are no longer a member of the EU.
I maintain that the approach in the Bill to the charter as a document is absolutely right, and that the Bill in this respect is in no need of improvement. However, as many noble Lords have pointed out, that approach cannot be separated from the Bill’s approach to the general principles of EU law, including fundamental rights. In response to the strength of feeling conveyed not just in this House but in the other place, the Government are looking again at these issues. These are highly technical issues in some respects but they are undoubtedly important, so we will look further at whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. Indeed, my noble friend Lord Lamont referred to an observation made by the Secretary of State himself that, if there were specific examples of rights which were not otherwise covered, we would examine them to ensure that the rights were not lost. However, that is not the case. On the specific question of whether the charter should be kept, our view remains that not incorporating the charter into UK law should not in itself affect the substantive rights from which individuals already benefit in the United Kingdom. This is because the charter was never the source of those rights.
The noble and learned Lord, Lord Goldsmith, anticipated that he might be reminded of his previous remarks on the matter, and I see no reason to disappoint him. In 2008, when this House debated the then European Union (Amendment) Bill, he was absolutely clear that,
“the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions … the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national”,—[Official Report, 9/6/08; cols. 426-27.]
laws.
The noble and learned Lord observed that he had nevertheless then encountered the incorporation of the charter into the Lisbon treaty in 2009. Perhaps that was a game changer. I remind him of his evidence to the European Scrutiny Committee in 2014. At that time he referred back to his previous statements and publications with regard to the charter and went on to say that, as he had there explained, the fundamental point was to provide a clear and accessible statement of existing rights and therefore constraints on the power of the EU to legislate.
As the noble and learned Lord’s previous remarks help to make clear, the charter is only one of the elements of the UK’s existing human rights architecture. It reaffirms rights and principles that exist elsewhere in the EU acquis, irrespective of the charter, and the Bill sets out how those rights and principles will continue to be protected in UK law after exit.
The noble and learned Lord referred to a number of issues, such as the case of Benkharbouche in 2017 in the Supreme Court. In that case the court found that there was a breach of Article 6 of the convention but it also referred to Article 47 of the charter in the context not of rights but of remedies. One has to bear in mind the distinction between rights and remedies.
The noble and learned Lord posed three questions in the context of previous observations about the charter. First, he talked about there being no loss of substantial protection. It is inevitable that leaving the EU will result in changes to the current arrangements, but certainly we do not accept that this in itself will result in a loss of substantive rights.
Secondly, he referred to the procedural protections that will be excluded. When we leave the EU, a person can still rely on sources that are reaffirmed in the charter. I emphasise “reaffirmed in the charter”, as he himself observed in 2008 and 2014. Procedurally there may be differences but we do not consider that that can be a basis for incorporating the charter into domestic law. Indeed, we absolutely stand by what has been said by the Prime Minister: it is not necessary to retain the charter to ensure that rights are protected.
The noble and learned Lord also referred to the body of the charter, beginning with Article 1, and suggested that these rights were contained only in the charter. I simply observe that on 5 December last year the Government published a very detailed paper setting out, as it were, a comparison of the rights in the charter and where they can be found elsewhere—in the convention, in the principles of EU law and in our own common law. The noble and learned Lord referred to Article 1, which concerns the right to human dignity. I remind him that there is a long series of case law both from the ECJ, as it then was, and from the European Court of Human Rights going back to 1995 in which, for example, the convention court emphasised that the very essence of the convention is respect for human dignity and human freedom. That has been repeated in a whole series of cases since then. These are well-established rights and they were well established when they were brought together into the charter.
I want to reassure noble Lords that substantive rights protected in the charter are, and will continue to be, protected elsewhere in UK law after we leave the EU, most notably in convention rights, in retained EU law, in the common law and via specific statutory protections such as those in our own equalities legislation. I have already mentioned that the Government published a detailed analysis providing guidance about how substantive rights found in the charter would be reflected in domestic law after exit.
Reference has been made to various legal opinions and that of Jason Coppel QC, who has had a number of name checks this evening. I can only implore noble Lords to look at the very detailed analysis the Government have produced. I also note that some of the references to Mr Coppel’s opinion involve references to his concern that Ministers might change rights, for example, or that the procedures will be affected. However, that is not to say that the fundamental rights underlying the charter are not found elsewhere.
Baroness Hamwee (LD)
My Lords, the noble and learned Lord quite rightly draws our attention to the distinction between rights and remedies, but he will agree that rights are not helpful unless there are remedies. If we were scrutinising the charter and the source of its rights to establish whether we were satisfied that the rights and remedies could still apply, we might, for instance, have noted that the sources of Article 1 mentioned in the analysis would not confer an enforceable right on individuals after exit day. That is the JCHR’s analysis of the analysis.
I hope that the Minister can answer the question asked, in particular, by the noble Lords, Lord Pannick and Lord Kerslake, about why we have combined the two debates—one about the charter, its rights and wrongs and whether it is good or bad, and the other about the mechanisms. We have heard so often from the Government Front Bench that this Bill is about mechanisms. Why are the Government not using the mechanism they have themselves designed to give them the opportunity, and to give the Committee the opportunity, to consider the substance calmly after the chimes of midnight?
Lord Keen of Elie
Quite simply because, as I indicated earlier to the Committee, the rights underpinning the charter exist elsewhere than in the charter and it is not necessary to incorporate the charter into domestic law in order to find those fundamental rights in our domestic law after we leave the EU.
Baroness Lister of Burtersett
I am sorry to interrupt, but the analysis by the Joint Committee on Human Rights to which the noble Baroness referred, which is an analysis of the Government’s analysis, identified a number of rights that are not there other than in the charter. Does the noble and learned Lord reject the JCHR’s analysis?
Lord Keen of Elie
We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost.
Clause 5(5) makes it clear that, notwithstanding the non-incorporation of the charter, retained EU law will continue to be interpreted by UK courts in a way that is consistent with the underlying rights. I hope that addresses to some extent the issue raised by the noble and learned Lord, Lord Wallace, in that context. Interpretive provisions will retain a means by which we can look at these rights in the proper context.
With regard to those who have expressed concerns about this Bill resulting in a loss of substantive rights, I repeat—as the noble and learned Lord, Lord Goldsmith, has done, at least prior to his recent Pauline conversion—that it is not necessary to retain the charter to retain those fundamental rights. If we see that there is a potential loss of such fundamental rights, we will address that, and that is what we have indicated.
Lord Pannick
I put it to the noble and learned Lord that there is no other area of retained EU law where the Government have carried out this exercise or said that we do not need to read across a particular provision because it is already in domestic law. Why are they making an exception of the charter?
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—
Lord Beith (LD)
The noble and learned Lord is right in that assertion, but it does not follow that retained European law should not be read across in the form of the charter as well as its other features on exit day. Lots of things will change over time. Parliament will no doubt amend retained European law so that it ceases to be retained European law, but the Bill is about legal continuity and what the situation is on exit day. For this purpose, surely the Minister should accept what is being proposed.
Lord Keen of Elie
I entirely agree with the noble Lord as to what this Bill is about. With regard to the charter, the point is that it does not bring anything over on its own. We already have these rights and obligations, as established by the principles of EU law, convention law and the common law.
As to a concern that something is omitted at the end of the day, as I indicated, we would address that to ensure that all rights are brought across. However, with great respect to the noble Lord, Lord Cashman, I do not believe that you can never have too many belts and braces. If you have too many belts and braces, eventually you cannot stand up. It is therefore important that we approach this issue with a degree of proportionality, if I may use a European term.
Following on from the point I made earlier, retaining the charter for what will become a fluid and changing category of law risks legislatively binding us to a document that would bring the illusion of clarity in the short term but serve only to undermine it in the longer term. Indeed, the other amendments in this group raise similar issues to those put forward by the noble and learned Lord, Lord Goldsmith.
My noble friend Lord Hailsham has tabled amendments that seek to build on the amendments put forward by the noble and learned Lord, Lord Goldsmith. They seek to assign the status of primary legislation to the European Charter of Fundamental Rights. For reasons that we will go into in a later group, the Government believe that the question of assigning status to retained EU law is complex and should be approached with caution. I hope that we can come back to this question when we have concluded our debate on the approach to rights protection and to status more generally. I will not seek to take up time on that issue at this stage.
I suspect that the amendment tabled by the noble Lord, Lord Wigley, would also add to the confusion. Seeking to afford charter rights the same level of protection as convention rights under the Human Rights Act 1998 is fraught with difficulty. Charter rights do not correspond exactly to ECHR rights and apply in different ways. The charter also contains non-justiciable principles as well as rights, and it is unclear what status these would have in domestic law under his amendment. Moreover, it does not deal with how explanations to the charter articles should be treated or how certain sections of the Human Rights Act would apply to charter rights. I appreciate that we are in Committee and that the noble Lord is entitled to say that he will look more carefully at the form of the amendment and perhaps elaborate upon it in due course, but there are fundamental difficulties with the approach he is attempting to take in simply trying to incorporate the charter when, as indeed the noble and learned Lord, Lord Goldsmith, himself observed, the expression of rights in the charter does not coincide precisely with the expression of rights in the convention.
I would like to emphasise again that we remain committed to listening to this House and indeed to working constructively to ensure that we have a functioning statute book which maximises legal certainty. I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that. I wish to reassure noble Lords on that point.
Lord Adonis
My Lords, can the noble and learned Lord give us any indication of when he thinks that that exercise will be completed?
Lord Keen of Elie
The potential answer is no, and the note says that my time is up. Nevertheless, and be that as it may, we will endeavour to address these issues as soon as we can. Clearly it will require us not only to consider the position we have adopted already in the document published in December last year but to take into consideration the concerns expressed by other lawyers and in this Committee in the course of the debate. We will look at those and we will want to address them at the next stage of the Bill; of that, I am confident.
At this stage I appreciate that there are some questions which I have not directly answered in the course of my response and it may be difficult to do so in the time remaining. Perhaps I may say that I endorse entirely the observations of the noble Baroness, Lady Deech, and of the noble and learned Lords, Lord Hope and Lord Brown of Eaton-Under-Heywood, with regard to the potential difficulties of simply drawing the charter over into domestic law. I am not going to elaborate on the consequences of doing that, but they can be summarised as confusion, uncertainty and difficulty, and ultimately could prove to be counterproductive. In these circumstances, I invite the noble and learned Lord to consider withdrawing his amendment.
Lord Goldsmith
My Lords, I am very grateful to all noble Lords and noble Baronesses who have taken part in the debate. It has been wide-ranging, as we anticipated it would be. I am grateful to the noble and learned Lord for his remarks. I shall obviously not spend long on what I say now, given the hour. As we approached midnight, I was looking around the corner to see whether a pumpkin would arrive with horses. I was not sure whether it would be for me or for the noble and learned Lord opposite.
Lord Adonis
My Lords, we have been debating Clause 1 for 18 hours and three-quarters. That is probably enough, so I shall not prolong the debate any longer.