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

Lord Keen of Elie Excerpts

Tuesday 15th January 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 28 November 2018 be approved.

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

My Lords, as I indicated a moment ago, the Government published a technical notice on a number of areas which anticipated the possibility of our leaving the EU without any form of withdrawal agreement. On 13 September 2018, we published a technical notice which set out arrangements for civil legal aid cases, including arrangements in relation to the EU legal aid directive 2003, which I will refer to as the EU legal aid directive. The regulations we are discussing today will allow us to implement these arrangements and make other necessary amendments to the legal aid framework in England and Wales and Northern Ireland. These draft regulations will provide clarity for lawyers and citizens in the event of a no-deal outcome. As I indicated, that is not what we hope for, seek or wish to have as our destination. I emphasise that this will deal with the matter in England and Wales and in Northern Ireland. It is a matter of devolved competence in Scotland. The Scottish Government will address it as they see fit.

If we were to leave the European Union without a withdrawal agreement, the current reciprocal arrangements under the EU legal aid directive would be lost. The EU legal aid directive sets out rules relating to legal aid in EU member states, other than Denmark, to ensure adequate access to justice in cross-border disputes. Its application is limited to civil and commercial matters. It only applies to cross-border disputes which are, very broadly, disputes where an individual who is domiciled or habitually resident in an EU member state requires legal services in relation to proceedings or to enforcement of a decision or authentic instrument in another member state.

In a no-deal scenario, we are seeking to ensure that legal aid provision—for matters within the scope of the EU legal aid directive but not otherwise within the scope of legal aid—is not made to individuals domiciled or habitually resident in an EU member state on a unilateral basis where there is no longer reciprocity from the EU member state.

The instrument also makes technical amendments to ensure that the legal aid legislation in England and Wales and Northern Ireland operates effectively following EU exit and makes changes to procedural requirements for legal aid applications in England and Wales. It amends the civil legal aid framework in England, Wales and Northern Ireland to remove the legislation implementing the EU legal aid directive, which will no longer apply to the United Kingdom.

Individuals who are domiciled or habitually resident in the EU member state who require legal services in relation to proceedings in England and Wales or Northern Ireland or who wish to enforce a decision will be subject to the same scope, means and merits requirements as those who are domiciled or habitually resident in England and Wales or third countries—in other words, it brings everyone on to a level playing field. Legal aid provision for those domiciled or resident in the UK participating in proceedings in EU member states will fall to each member state’s particular legal aid framework—again, we cannot legislate for those states.

Repealing the legislation implementing the EU legal aid directive will ensure legal certainty and clarity regarding legal aid entitlement. In addition, we avoid a unilateral arrangement where those domiciled or habitually resident in EU member states are treated more favourably than those domiciled or habitually resident in the United Kingdom.

If I may, I shall explain the technical amendments made by the instrument. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Access to Justice Order 2003 require the provision of legal aid for exceptional cases not normally within the scope of legal aid where not to do so would be a breach of enforceable EU rights. LASPO also provides that the Lord Chancellor may make an order specifying circumstances where foreign legal advice may be provided when not to do so would, again, be a breach of enforceable EU rights.

The references in LASPO and the 2003 order will be amended to “retained enforceable EU rights”, because of course, pursuant to the 2018 Act, in our domestic law we will have retained enforceable EU rights, but we will not have EU rights. The terms will be defined with reference to the 2018 Act, as I said. That will enable the proper functioning of the exceptional case funding frameworks in England and Wales and, under LASPO, for the provision of foreign legal advice.

As to the procedural amendments, controlled work, which is referred to in the instrument, is a categorisation of legal aid work covering certain advice where the power to determine legal aid entitlement is generally delegated to legal aid providers—for example, initial advice and assistance. At present, it is not necessary for an individual seeking legal aid for controlled work in England and Wales to attend a legal provider’s premises in person where they are present or reside in the EU. Such an individual can authorise someone to attend on their behalf.

The draft instrument changes the exception to apply to those present or resident in the United Kingdom, and these changes will allow the benefit to continue to apply to those within the UK and ensure that those residing within the European Union will now be required to meet the same criteria as those residing in third countries are currently expected to meet when applying for controlled work and not present in the United Kingdom.

Licensed work is a categorisation of work that is generally granted where there is a need for representation in court, and the procedural criteria that currently apply for individuals applying for licensed work in England and Wales who reside outside the EU and are not present in England and Wales will now apply to those who reside outside the United Kingdom and are not present in England and Wales. In other words, it will level down the playing field as between those resident in the EU and those resident otherwise in a third-party country. As such, those residing within the EU will now have to meet the same criteria as those residing in third countries for the purposes of applying for licensed work in England and Wales.

With respect to the changes made to the domestic legislation implementing the EU legal aid directive and to the procedural requirements, the draft instrument makes provision for transitional arrangements for matters that are live under the repealed or amended legislation at the time of EU exit, so at least they will continue under the same rules as before.

As regards the impact, the department carried out an impact assessment, although one would not have been required in the context of the present instrument. I say that because in 2017, there were only 27 cross-border applications made between England and Wales and the central authorities in all other EU member states with regard to legal aid and of those, 20 of the applications were from EU member states for legal aid in England and Wales and seven went the other way. In Northern Ireland, it is estimated that there have been three applications over the past two years.

The instrument is necessary to correct deficiencies arising from the UK’s exit from the EU and in LASPO. As I said, the Scottish Government are taking required amendments to legal aid legislation in their jurisdiction separately, in order that that, too, can be addressed. I hope that with that explanation, noble Lords will understand the need to put this in place in the event of our proceeding without a withdrawal agreement, without a relevant transition period and without the scope for negotiation to deal with these matters. I commend the instrument to the House.

[Lord Thomas of Gresford (LD)]

My Lords, I must confess that it is not easy to grasp the scope of these provisions, but then I last filled in an application for civil legal aid when I was campaigning politically for Britain to enter the European Common Market about 55 years ago. In a paper published by the Ministry of Justice in August 2017, Providing a Cross-Border Civil Judicial Cooperation Framework, the Government declared that they would seek to agree new, close and comprehensive arrangements for civil judicial co-operation with the EU. The paper stated:

“We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now”.


In paragraph 7 of that paper, the benefits of the current framework are described as follows:

“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State”.


As with the previous statutory instrument, nothing appeared in the political declaration which refers to these “new, close and comprehensive” arrangements. Again, perhaps the Minister can advise us how far he has got in discussing the future.

An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive set minimum common rules relating to legal aid to improve access to justice in cross-border disputes and it applied to all such disputes involving civil and commercial matters but, in particular, it applied to family law: problems about children, the disposal of assets and so on. As the Minister said, its provisions were incorporated into English law by LASPO, and this SI’s purpose is to ensure that those domiciled or habitually resident in EU member states are not treated more favourably after we leave the EU than those who reside in England, Wales or Northern Ireland. EU residents who require legal services in relation to proceedings in our courts or who wish to enforce an overseas judgment will no longer have a right to legal aid for matters within the scope of the EU directive alone. The SI uses Henry VIII powers under Section 8 of the LASPO Act to revoke the domestic legislation implementing the EU directive in the UK, as the Minister fully explained.

So far as I can ascertain, this statutory instrument will prevent EU residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not to do so would be a breach of “retained enforceable EU rights”. Will the Minister give a concrete example of what “exceptional cases” means? He told us something of the statistics but how often have such applications for legal aid in exceptional cases been made by EU domiciled people or residents? Can he confirm that EU residents, even after Brexit, can apply for legal aid in the ordinary way for, say, a case involving children across borders in an English court, and that it would be granted if the ordinary merits and the means tests were satisfied? Does domicile or residency in the EU disqualify an applicant from legal aid in the normal way?

[Lord Beecham (Lab)]

My Lords, in general, the view of the Law Society and the Bar Council is that these regulations do not raise many problems but some matters appear to require clarification. I am not sure whether I am about to overlap with what the noble Lord, Lord Thomas, has just raised. He will forgive me—although the Minister may not—if I am going over the same ground.

The Law Society has raised a question on the impact on the provision for legal aid under paragraph 44 of Part 1 of Schedule 1 to LASPO, which states:

“Civil legal services provided in relation to proceedings in circumstances in which the services are required to be provided under Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes”.


At present it is unclear, certainly to me, how many people are granted legal aid under this provision. I do not know whether the noble and learned Lord will have that information to hand—presumably not. Perhaps he can provide it later if it is not immediately available.

The other question is: do the Government know how many such provisions are reciprocated by the other side, so to speak? If there are significant numbers involved, the Government should surely ensure that there is funding in the event of a no-deal Brexit but if there is a Brexit deal, this provision should be included on a reciprocal basis, given the number of UK citizens residing in the EU who may well need such assistance. As I say, I do not know whether the noble and learned Lord will have that information but I certainly join the noble Lord who spoke previously in wishing for confirmation that legal aid will still be available for those who need it in these areas.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions. The noble Lord, Lord Thomas, makes a good point about the advantages for all in securing mutual judicial recognition and enforcement. That is why, at an early stage, we sought to take forward those discussions with the profession on what was required. He is right to observe that the matter is not contained in the withdrawal agreement or the existing declaration but is an ambition. That may seem very little but, recognising that, we have taken forward what we can, which is to deal on a unilateral basis with the more recent Hague conventions that have been entered into by the EU on behalf of member states. We have engaged in discussion to become an individual state signatory to those conventions. My recollection is uncertain but I think the 2005 and 2007 conventions were involved. We have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that. Again, to become a party to Lugano, we require the consent of the EU because it is also party to it. Those steps are being taken forward and we are conscious of their importance. I underline that.

On legal aid provision, there is no question of a disqualification being applied on the basis of residence in the EU. Let me be clear about that. The point is that the scope of the EU legal aid directive is wider than the scope of the legal aid provision under LASPO. This instrument is to bring that into line with LASPO and have a situation whereby, in certain forms of civil and commercial dispute, the directive would require consideration of a legal aid application that would not otherwise fall under the LASPO provisions.

[Lord Thomas of Gresford]

I was asking what the exceptional cases are.

[Lord Keen of Elie]

I was coming to that and would point out that the exceptional case provision is there for all cases that fall under LASPO. That will apply equally to those resident in the EU, as it would apply to those resident in the United Kingdom. Again, I point out that there is no disqualification or discrimination in respect of that matter; it is a case of ensuring that there is a level playing field whereby the scope of legal aid availability and the qualification for that aid are the same. It may not assist your Lordships much but there are provisions in the EU directive for taking account of differences in standard of living, for example, when applying financial criteria for legal aid under the directive. It is that sort of provision that we have to deal with to ensure that there is a level playing field. I emphasise that this instrument does not seek to disqualify anyone who would otherwise qualify for legal aid under LASPO, whether under the exceptional provisions or standard provisions of that scheme. I hope I can reassure your Lordships on that point.

I have rather forgotten the other points that the noble Lord, Lord Beecham, so eloquently made, but if I sit down without answering, will he remind me afterwards and I will write to him? As I say, I want to underline the purpose of the instrument, which is to produce a level playing field, not a disqualification.

Motion agreed.

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Tuesday 15th January 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 21 November 2018 be approved.

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

My Lords, the House will be aware that the Government have been publishing a series of technical notices to outline the implications of a no-deal exit for citizens and businesses. On 12 October, the Government published a technical notice titled, Providing services including those of a qualified professional if there’s no Brexit deal. This notice set out the implications of a no-deal exit for professionals in scope of the two EU directives on lawyers’ services and lawyers’ establishment. The draft instrument that we are discussing today makes changes to the arrangements in England and Wales and in Northern Ireland relating to these directives. It remedies deficiencies in the relevant retained EU law arising from withdrawal from the EU. Scotland will be taking forward its own legislation on this matter, as it pertains to a matter of devolved competence.

I thought it would be prudent for me first to set out how these EU directives are currently applied in the United Kingdom and across the other members of the EU. The lawyers’ services directive allows specified lawyers to provide regulated legal services in a member state other than the one in which they qualified—termed a “host state”—without the need to register with a host state regulator. Lawyers provide services under their existing professional title, otherwise termed their “home state” professional title. The directive clarifies the regulatory rules applicable and the conditions for providing services in a host state.

The lawyers’ establishment directive allows specified lawyers in one member state to practise reserved legal activities on a permanent basis in another member state, under their home state professional title, and provides the conditions for doing so. It also allows lawyers who are practising in another member state to be admitted to the profession in that member state, after three years of practice in the law of that member state, without having to go through the usual qualification routes. European lawyers practising in the United Kingdom under the establishment directive must be registered with a UK regulator as registered European lawyers. As registered European lawyers, they have the right to own a legal business without a UK-qualified lawyer.

If we leave the EU without an agreement, the lawyers’ services directive and the lawyers’ establishment directive will no longer apply to the United Kingdom and there will be no system of reciprocal arrangements under which EU and European Free Trade Association lawyers can provide regulated legal services and establish on a permanent basis in the UK—and, likewise, UK lawyers in the EU. It is the deficiency in retained EU law caused by this lack of reciprocity that we are seeking to remedy.

First, EU and EFTA-qualified lawyers who have already successfully transferred into the English and Welsh or Northern Irish profession will be able to retain their qualification and related practice rights—but arrangements will be different in future. In the event that the UK leaves the EU without a deal, our services trading relationship with the EU will be governed by World Trade Organization rules. The General Agreement on Trade in Services prohibits signatory states giving preferential market access to any other signatory state in the absence of a comprehensive free trade or recognition agreement between them. We therefore need to fix the deficiencies in the relevant retained EU law caused by the lack of reciprocal arrangements with the EU, while also meeting our international law obligations. As such, we will revoke the legislation that currently implements the EU framework, and EU and EFTA lawyers will be treated in the same way as other third-country lawyers.

The draft instrument will also provide a transition period to allow registered European lawyers time to comply with the new regulatory position. The transition period will run from exit day until 31 December 2020.

[Lord Adonis (Lab)]

Can the Minister tell us how many lawyers will be affected by these arrangements?

[Lord Keen of Elie]

Yes, of course. I am obliged to the noble Lord for prompting me to go straight to that point. There are 680 European lawyers registered with the Solicitors Regulation Authority and up to 20 who are with the Bar Standards Board: far fewer in the latter case because, of course, most European lawyers who come to practise tend to find themselves practising in London’s large firms, rather than seeking to establish themselves as independent barristers at the Bar. I hope that that meets the noble Lord’s concern on that point.

[Baroness McIntosh of Pickering (Con)]

As my noble friend is aware, I worked in the other way: I qualified under Scots law and then went to practise in Brussels. Under the new arrangements, what will be the reciprocal rights of those who wish to do precisely what I did after we leave the European Union?

[Lord Keen of Elie]

In the event of us exiting without any deal, there will be no reciprocal rights—which was one reason why, as I indicated, these regulations are required. They are necessary in order that we can establish a position in which all third-party country lawyers will be on the same standing in the absence of a free trade agreement or other agreement with a third-party country. There will be no reciprocity—that will be a matter for the relevant EU country to consider—but clearly it is a matter that we would wish to address in future negotiations consequent on our exit from the European Union. This is dealing with the position in the United Kingdom in light of the existing regulatory regime under EU law. Clearly, and quite patently, you could not address the question of how the EU 27 are going to treat our lawyers going forward.

[Baroness Kingsmill (Lab)]

Is it correct that this applies only in the event of a no-deal situation?

[Lord Keen of Elie]

I have already said that.

[Baroness Kingsmill]

It does not say that on the face of the regulations: that is why I was checking.

[Lord Keen of Elie]

That is why I said it in opening—but, if the noble Baroness wishes, I can repeat it.

[Baroness Kingsmill]

I just wondered if it might be helpful if it were on the face of the regulations, because this situation keeps arising on many of the other ones as well. The problem is that these things have a tendency to drift on, and in the event that there was not a no deal but there was some other kind of deal, would the regulations that we are considering at the moment have some kind of half-life or a continued life of some kind or another? That is why I put the question: I am concerned that in this and in other statutory instruments that I have been considering, there is nothing on the face of the instrument that actually says that this will fall by the wayside in the event that there is any kind of deal other than a no deal.

[Lord Keen of Elie]

The terms of the instrument make it perfectly clear that it is to apply in the absence of a deal. My department is certainly well aware of the scope and application of the instrument, which is why I made it clear in opening that this instrument will apply in the event of there being no deal. However, in the event that there is a withdrawal agreement of some kind, clearly that would not be a situation in which the instrument would be required.

[Lord Hope of Craighead (CB)]

I do not want to cause any difficulty, but why does paragraph 1(2) refer to the transitional period? There will not be a transitional period if there is a hard Brexit and no deal.

[Lord Keen of Elie]

It does not refer to the transitional period as proposed in the withdrawal agreement: it refers to a transitional period that will apply for the purposes of this particular instrument in order to ensure that there is no immediate cut-off for EU lawyers in the United Kingdom. It is for that particular purpose that this particular regulation allows that, and it is considered that that is allowable under the GATS regime as well—in other words, we are allowed a period of time to transition to a point where European lawyers registered in the United Kingdom come to find themselves in the same position as third-party country lawyers.

[Baroness McIntosh of Pickering]

I am sorry to belabour the point, but I am slightly confused about why we are being so nice and kind to EU lawyers—the non-British lawyers who are working here—and not seeking to protect the rights of British lawyers who are working in Brussels, Denmark, Sweden and other EU countries. Are we not trying to be reciprocal now?

[Lord Keen of Elie]

Clearly, over time we will address the ability of the United Kingdom to agree with the EU the possibility of reciprocal rights for United Kingdom lawyers in Europe, but it is not something that we can dictate by our legislation. What we can do, however, is facilitate the position of EU-registered lawyers who are already in the United Kingdom and contributing to the legal services in the United Kingdom so that they can be secure in the knowledge of what their position will be in the event that we exit without any agreed deal.

[Lord Foulkes of Cumnock (Lab Co-op)]

The Minister may have said this before I came in. I apologise: I was held up at a meeting outside. He mentions the United Kingdom, but paragraph 2.1 of the Explanatory Memorandum says:

“The purpose of this instrument is to end the preferential practising rights of EU and EFTA lawyers in England and Wales and Northern Ireland”.


What is the position in relation to Scotland?

--- Later in debate ---

[Lord Keen of Elie]

The noble Lord is quite right: he was not here when I began. I said that with regard to Scotland, this is a devolved issue and the Scottish Government are addressing that matter. However, in taking forward negotiations with regard to reciprocal rights in the future, we would have in mind the interests of all lawyers within the United Kingdom, wherever they qualified. But for the purposes of determining the rights of registered European lawyers in the United Kingdom, we will deal with it by way of this instrument for England and Wales and for Northern Ireland, and the Scottish Government are undertaking to address it in the context of that jurisdiction. That is where we stand. As the noble Lord is aware, this is a devolved competence.

[Lord Foulkes of Cumnock]

The Minister has been particularly helpful in relation to that. I know that he knows Scots law very well, as do a number of other noble Members present. What is the current state of play in relation to this being dealt with in the Scottish Parliament? Is it running parallel with us? Is it ahead of us? Is it behind us? Will it be able to get it done in time? I know they are not very keen on no deal—in fact, they are not very keen on coming out of Europe at all—in the Scottish Parliament so I wondered what the state of play was in relation to dealing with this in the Scottish Parliament.

[Lord Keen of Elie]

In relation to this particular instrument, I am not in a position to say where the Scottish Government are in processing such a proposal. That is a matter for them and it is not a matter that they would, as a matter of course, disclose to me. But, as I say, I have confidence that they are aware of the issue and they have decided that they will take it forward. If they had wanted to utilise the provisions of the Scotland Act to have the UK Parliament legislate for them in regard to this matter, they would of course have said so. The very fact that they have not is indicative that they are making progress to legislate for this on their own behalf. That is where we stand.

[Lord Beith (LD)]

Perhaps I might ask the Minister to tidy up the point that was raised earlier. What ensures that if there is some kind of deal, the provisions of this instrument fall away? Does it require some further statutory provision to do so—in effect, revoking the instrument—or does it fall away if there has not been an exit day? But surely if there is a deal, there is still an exit day.

[Lord Keen of Elie]

My Lords, in the event that we have a deal, we will repeal this instrument. It will have no further purpose in those circumstances. This is to address the issue of there being no deal—I emphasise that again.

[Baroness Kingsmill]

Perhaps the Minister can clarify: it will have to be repealed? We will have to go through all of this again?

[Lord Keen of Elie]

We will have to address those instruments that are in force which no longer have an application in the event of a withdrawal agreement being entered into.

I referred to the arrangements that would be made for EU and EFTA-qualified lawyers because these arrangements include not only EU 27 lawyers but EFTA and Swiss lawyers, who are subject to similar arrangements.

In the event that the UK leaves the EU without a deal, as I said, we will be governed by the GATS provisions. Therefore, we will have to comply with them and we need to address that issue. The draft instrument will also provide, as the noble and learned Lord, Lord Hope, observed, a transition period to allow registered European lawyers time to comply with the new regulatory position. We consider that that will not be inconsistent with the GATS regime. As I said, the transition period will run until 31 December 2020 and will allow registered European lawyers and those in the process of achieving that status by exit day to practise in the same way as they do now but to use the time to adjust their position. This arrangement will also allow EU and EFTA lawyers with ownership interests in regulated legal businesses in England and Wales or Northern Ireland to adjust their regulatory status.

As I have set out, there will be a deficiency in retained EU law which implements the two lawyers directives, due to a lack of reciprocity, if we leave the EU without a deal. It is the purpose of this instrument to address that deficiency and to ensure that by doing so we uphold our international obligations in this context. I emphasise the point that was brought out by the noble Baroness, Lady McIntosh. It does not—indeed, it cannot—address the issue of reciprocal rights for UK lawyers in the EU 27. It is in these circumstances that I beg to move.

[Lord Adonis]

The impact assessment refers both to registered European lawyers, of whom it says there are 693, as of last July, which I take to be the group that the Minister referred me to a few moments ago, and to “registered foreign lawyers”, of whom there are apparently 2,406. But it is not clear to me what the impact is of these regulations on registered foreign lawyers and the 2,406 who are mentioned in the impact assessment. Perhaps he could tell the House.

[Lord Keen of Elie]

Yes, I am most obliged to the noble Lord. Registered foreign lawyers are those lawyers of third-party countries who are registered in the United Kingdom. We have lawyers from many jurisdictions—for example, the United States of America—who practise under their foreign lawyer qualification in the United Kingdom. As the noble Lord will appreciate, London is an international legal centre as well as an international finance centre. This instrument has no impact at all on those foreign lawyers but it aligns registered European lawyers with registered foreign lawyers for the reasons that I have indicated.

[Baroness McIntosh of Pickering]

By definition, this instrument is to be of a limited duration. Is it temporary or is it of unlimited duration? I understood my noble and learned friend to say in response to my questions that this could well be overtaken by events at such time as we have a negotiated withdrawal agreement. At what stage will the negotiations be expected to start to make sure that British-qualified EU lawyers practising in other member states will be aligned with those EU- qualified non-British lawyers who are practising in this country? I understood my noble and learned friend to say that we are going to have two categories of European-qualified lawyers as of 29 March. There will be those non-British EU-qualified lawyers who are qualified to practise in this country, who will continue after 29 March. But there will be those like me—clearly, I am non-practising now—who will not be able to practise in another EU country post 29 March. For the avoidance of doubt, for a newly qualified European lawyer coming through in this country, is it understood that our qualifications, whether as a Scottish advocate or solicitor or as an English barrister or solicitor, will be recognised in other EU countries as entitling that person to qualify in European law in those countries, or will they have to go through, for example, a Danish jurisdiction, an Irish jurisdiction or a Belgian jurisdiction should they wish to practise in that particular member state?

[Lord Keen of Elie]

My Lords, this is a permanent change in the law, which may be subject to defeasance in the event that we have a withdrawal agreement. It will then be rendered unnecessary. It applies to and is concerned with the position of registered European lawyers in the United Kingdom. It cannot make provision for United Kingdom lawyers in the EU 27 or EFTA countries. We have no competence to do that. It is our hope, however, that in due course, and following withdrawal, subject to the withdrawal agreement, we will in the course of negotiation be able to negotiate with the EU 27 the development of appropriate reciprocal recognition for lawyers going forward, but that is for the future. This is a permanent change in the law to address the prospect of our leaving on the 29 March 2019 without a withdrawal agreement.

[Baroness McIntosh of Pickering]

I am sorry to persist, but could my noble friend answer my second point? After 29 March, will the qualification of anybody who is newly qualified under United Kingdom jurisdiction be recognised to enable them to practise automatically in another EU country, or will they have to requalify in that country on 30 March?

[Lord Keen of Elie]

With great respect to the noble Baroness, we cannot legislate to ordain the EU 27 or any EFTA country to recognise the legal qualification of someone who has qualified in the United Kingdom. We simply cannot do that, so, after 29 March, in the absence of any withdrawal agreement and any negotiated arrangement with the EU 27, such people will have to do what any other third-party-country lawyer does, which is to go to the relevant jurisdiction and apply the host country’s provisions on registration and qualification. There is no doubt about that.

[Lord Thomas of Gresford (LD)]

I congratulate the Minister on his timing. This is part of the no-deal preparations along with the fake travel jam, the lorry jam in Dover and the hiring of ferries with no ships, but it is a bit late now, with about half an hour to go to the vote, to frighten the horses any further. It is extraordinary that parliamentary time should be spent in debating a statutory instrument of this nature. It is applicable only if the UK leaves the EU without reaching an agreement. The effect of that is to throw the United Kingdom on to World Trade Organization rules for general agreement on trade and services.

If that were to happen, the most-favoured-nation rules would come into operation prohibiting preferential treatment of any signatory state above another. The whole purpose of this statutory instrument, therefore, is to reduce EU and EFTA lawyers currently practising in this country to the level of the lawyers of third-party countries from around the world whose rights to practise and establish in England, Wales and Northern Ireland, absent a trade deal, are absolutely minimal, if they exist at all. As the noble and learned Lord said, this SI affects about 700 lawyers currently registered with the Solicitors Regulation Authority, 17 registered with the Bar Standards Board and some five EU lawyers registered in Northern Ireland. The other side of the coin, however, which would be of concern to the legal profession, is that the EU will obviously seek reciprocally to reduce the rights of United Kingdom lawyers practising in the EU to those WTO rights.

One of the most important differences between the WTO regime and the existing EU framework is the practice areas in which foreign lawyers are allowed to provide services in Europe. While the directives allow EU, EEA and Swiss lawyers to practise host member state law, including EU law, it is not possible under the current GATT schedule for commitments of the EU, which limits third-country lawyers to providing legal advice in home-country law and public international law, to practise in EC law.

While it is possible in theory for individual member states to grant higher levels of access to foreign lawyers, in practice most member states have not gone beyond these GATT commitments. It follows, therefore, that British lawyers will lose a number of significant rights: rights to provide legal advice on EU law; the right to requalify in host member states; and rights of audience in domestic and European courts. Further, according to the settled case law of the CJEU, lawyers from third countries practising in Europe cannot claim legal professional privilege to protect their clients’ interests. Legal professional privilege is not available to them.

It is not surprising, then, that in 2016 the Law Society of Ireland received nearly 1,400 applications from practitioners to requalify in Ireland. Those were British lawyers, mostly from antitrust, competition or trade law practitioners, based in London or Brussels. Last week the Irish Taoiseach specifically said that they were looking at Ireland taking business in legal services away from the United Kingdom. This statutory instrument, therefore, risks unnecessary conflict with the EU legal profession. There will be no reciprocity. Even if there were a no-deal withdrawal from Europe, surely there would have to be an agreement to retain an open market for legal services allowing mutual rights to practise across the borders. You will see no trace of that in the political statement that accompanies the withdrawal agreement. As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out last week, we are in a competitive position. Commercial courts where the proceedings are conducted entirely in English have opened up already in Paris and Amsterdam. The noble and learned Lord said that they are being actively promoted as a much better alternative to the United Kingdom because their judgments will be recognised and enforceable across the EU and because of the certainty of their position.

If the EU does unto us what we are doing to it by this statutory instrument, British lawyers will have no rights of audience in these new English-speaking courts. That is a most curious result. Instead of spending time abolishing the rights of European lawyers to practise in this country, the Government might spend time in negotiating mutual rights to practise to replicate the current position. There is nothing, as I have said, in the political declaration that points to such negotiations. I ask the noble and learned Lord: where are we? Have there been any talks on this issue?

--- Later in debate ---

[Lord Adonis]

Before the Minister rises, I noted in his opening remarks that he did not refer to the consultation that had taken place. This is a big theme in the way that the House is seeking to scrutinise these statutory instruments, since there has been very rushed consultation or almost no consultation. Can he tell the House in his response what the consultation has been and what the response has been?

I observe, from a brief search of responses to these regulations, that they have not been particularly positive. I notice that the President of the Law Society, Christina Blacklaws, is quoted as saying that these regulations,

“will cause firms a significant amount of expense to find work arounds and, with tight margins, small and medium sized firms that employ EEA lawyers will struggle most to adapt”.

I think the House will be particularly concerned about the small and medium-sized firms. The larger firms can take care of themselves and can pay a lot of the costs and associated expenses, but small and medium-sized firms under pressure should be of concern to us. Can the Minister tell us more about the engagement there has been with such firms, how the costs might be mitigated, and tell us more about the response to the consultation at large?

I also make a general point, which is that I know that in a sense, everything we are doing in response to no deal is utterly deplorable; I do not want to repeat all the remarks I made earlier, although they apply here too, about how it is almost unthinkable that we should be making these arrangements for a cliff edge and all that goes with it. What is becoming clear again, in case after case, is not just that no deal will be deplorable but that the effects for this country over the medium term of withdrawing from the European Union will also be deplorable.

The noble Lord, Lord Beecham, quite rightly referred to the very large European market in legal services. We have fantastic lawyers, some of the best law firms in the world, and as the Minister said, we are a major centre for international legal firms. I do not remember whether it was the Minister or my noble friend who referred to the proportion of the largest firms that do work across the European Union, but it was a high proportion. Essentially, we are engaging in an act of self-mutilation. We are deliberately choosing to restrict the markets in which our legal firms can work and deliberately choosing to restrict the opportunities for the next generation of lawyers to be able to practise. That is, on any reading, deplorable.

Maybe the Minister, who is such a distinguished member of his profession, might rise to the occasion and say that he regrets that and wishes that we were not limiting the opportunities for our lawyers and our country in the way that we are. When the next generation of lawyers looks back and sees that their opportunities have been stunted and that the opportunities they have to practise in European markets have been withdrawn and that if they wish to do so they will need to move to the EU, maybe some of them will look back and say that the leaders of the profession who had responsibility at this period should have had a much closer regard for the interests of the next generation than they have had.

[Lord Keen of Elie]

My Lords, I shall begin with the observation from the noble Lord, Lord Beith, because I omitted to identify the location of the suicide pill. I am advised that the intention is that, in the event of an agreement, it will be incorporated in the withdrawal agreement Bill, and that is the mechanism that it intend to employ’s for those purposes. I apologise for not having appreciated that when the question was first raised.

[Lord Foulkes of Cumnock]

Will that apply to all several hundred SIs? Will they all be incorporated in the withdrawal agreement Bill?

[Lord Keen of Elie]

My understanding is that that is the mechanism that will be employed.

A number of noble Lords raised the question about the access of UK lawyers to the EU 27 and EFTA. That is not the purpose of this instrument, but I do not wish to ignore it. Clearly, we would like to see a withdrawal agreement that leads on, pursuant to that, to negotiations that can ensure that we have as wide a form of access to the EU 27 and EFTA countries for legal services, like other services.

The noble Lord, Lord Thomas, made a number of perfectly good and valid points about where we are without a deal and the impact it will have upon the provision of legal services. This is a matter over which I have been in discourse with the legal profession for the past two years, and I have visited with a number of firms in jurisdictions outside the United Kingdom to discuss with them where they stand with regard to these matters, in particular in Paris. Of course, as the noble Lord, Lord Beecham, has observed, this is not for the larger firms. It tends to be the very large firms—generally City-based—who are engaged in practice outside the United Kingdom, particularly in Europe.

The noble Lord, Lord Adonis, asked about small firms and the impact on them. To a very large extent, it is the City firms who are employing European lawyers for a particular form of expertise. One has to bear in mind that small firms do not tend to have non-UK qualified European lawyers practising.

It is perhaps worth noticing—lawyers will appreciate this, but others may not—that, in England and Wales any natural person may deliver legal services for pay, except in the defined, reserved areas, of which there are six. They cannot call themselves solicitors or barristers, but they are only prohibited from practising in the reserved areas, unless they are subject to appropriate regulation. In the event, EU lawyers who have not requalified—and I will come back to this point—tend only to be here in order to show expertise within the law of their own particular jurisdiction. To try to put it in context, this applies not only to EU lawyers but also, for example, to American lawyers, so that, when they are doing international transactions they have available to them expertise in another jurisdiction’s law.

In addition, we have to bear in mind the mutual recognition of professional qualifications. After three years in the United Kingdom, an EU lawyer is in a position to apply to become a lawyer under the host state’s regulation—in other words, a solicitor or barrister. Generally speaking—and this is a point emphasised in the Bar’s briefing—those who intend to be engaged in reserved matters will take that qualification. That is why, when engaging with the profession on this matter, we have allowed for a transition period so that, by 2020, people who are intent on remaining in the United Kingdom to practise in reserved areas will have had the opportunity to move over under the three-year rule in order to have the host qualification to continue. The Bar’s briefing said that, in the experience of the Bar Council, most EU practitioners who are interested in delivering reserved legal activities, obtain one of the home titles in order to be more successful in our legal market. I hope that addresses this point.

On the issue of consultation and negotiation, the question of professional legal qualifications was raised with the EU at a very early stage on the basis that it was an adjunct to citizen rights. At that stage, the EU was not prepared to negotiate on that issue as distinct from what they regarded as citizen rights. It was, therefore, not taken forward in the context of the withdrawal agreement. In the context of the political declaration, it is directed principally to goods, although others elsewhere will discuss the distinction between goods and services. At the present time, it is our present intention to engage, if we have an agreement with the EU, on the question of reciprocity and recognition going forward. We understand the importance of this.

I might add that we have discussed the matter with those firms that generally operate in the EU and outside the United Kingdom. They have been aware of these issues for some time and very many of the lawyers whom they engage in their offices—for example in Paris and Hamburg—are now locally qualified or are qualified nationals of the host state. That is the way in which these practices are carried on.

I take the point made by the noble Lord, Lord Adonis, that some restructuring has been required to allow for this, and that has to be accepted. It is restructuring that would not otherwise have been engaged in, but these firms have undertaken it in preparation for the possibility of a no-deal Brexit. However, these tend to be the major City firms. You do not get the high street conveyancing lawyer trying to open offices in Paris—if they do, I suspect it is not terribly successful.

I recognise the development of courts in other jurisdictions and, in particular, the point made with regard to potential developments in Ireland. I am well aware of many of my fellow barristers who have checked their ancestry just to ensure that they can secure an Irish passport. Lacking that, they have sought to secure a place at the Bar of Ireland. It may be apocryphal, but I understand that the fee for registration as a solicitor in Dublin went up rapidly from €300 to about €3,000. I may be doing the solicitors’ branch of the profession a disservice in relying on that story, but these developments are taking place. Let us remember that, at the level of international litigation, the real competitors are Singapore, Hong Kong and New York, which are all places outwith the EU, albeit that there are specialist centres—Stockholm being one, in the context of shipping and arbitration; and Hamburg being another. We recognise that as well.

I come back to the instrument itself. We are required to pass it because, otherwise, we will be in breach of our international law obligations under the WTO and, in particular, the GATTs. So it is necessary for this purpose. I hope that it will not be required. I express this view without qualification. It is only appropriate and sensible that the Government make provision for what could be an eventuality. I am not going to revisit ground that the House has already covered in the context of earlier statutory instruments which were before it. I hope that it will not be required, but it is only proper and appropriate that we should engage with the profession in order to ensure that we are prepared for any foreseeable eventuality, however unpleasant and unrewarding it may be. I beg to move.

Motion agreed.

Brexit: Withdrawal Agreement and Political Declaration

Lord Keen of Elie Excerpts

Monday 14th January 2019 Lords Chamber

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

My Lords, I am pleased to close this debate on behalf of the Government. I thank noble Lords on all sides of the House for their contributions to this debate. It is a mark of the role of this House that even at this hour, the House is in its present form and so full as we conclude such an important debate on such a fundamentally important issue.

Trust and compromise. If we do not trust those with whom we engage, there really can never be room for compromise. If we have no means to compromise, we will find it impossible to achieve consensus. Trust and compromise. I am not a supporter of the idea of referenda. Like the noble Lord, Lord Stephen, I experienced at first hand the referendum on Scottish independence. It was attended by division, exaggeration and overstatement, and was immediately followed by demands for a second referendum that have persisted ever since. But this Parliament decided that the question of whether or not we remain or leave the EU should be put to a referendum. No one forced parliamentarians to do that. They passed an Act for the referendum by an overwhelming majority. They did not concern themselves overly at the time with the precise terms in which they were going to put that to the people—they were simply determined that it would go to the people.

Then they went to the people in a general election, and both principal parties put it forefront in their manifestos that they would respect the result of the referendum. Thereafter, this Parliament passed an Act to authorise the Executive to serve the Article 50 notice, which under international law would determine our membership of the European Union. Then, this Parliament passed the European Union (Withdrawal) Act, which defined the exit date for us to leave the European Union as 29 March 2019. So it was this Parliament which determined, both at the level of international law and in domestic law, that our exit from the European Union would take place on that date.

There followed two years of negotiations. In some places I hear those negotiations belittled. They were carried out by officials working to their instructions and performing to the best of their ability. Perhaps some would be prepared to acknowledge that, whatever the outcome of their actual negotiation. Without the withdrawal agreement I simply remind noble Lords that we do, under the law that this Parliament made and implemented, leave the European Union on 29 March of this year. That should be at the forefront of everyone’s mind.

We have heard reference to alternatives and mention of Labour’s six points. I was going to refer again to the lucid explanation of those points given by the honourable Member for Brent North, Mr Barry Gardiner, who is still the Front-Bench spokesman for Labour on the matter of trade—but I do not think I really need to repeat it. The noble Lord, Lord Liddle, gave a very adequate summary of Labour’s position on this. I would merely mention that the noble Baroness, Lady Hayter of Kentish Town, alluded to a customs union which, as described by Labour, would be directly contrary to Article 1 of the treaty of Rome and would effectively confer upon the United Kingdom, were the EU ever to accept it, a veto over the EU entering into free trade agreements with third-party countries. It is admirable in its breadth but hopeless in its intent.

Of course, the Liberal Democrats did not go into the general election with a mandate to respect the outcome of the referendum and their position, as I understand it, is that they are determined to keep the United Kingdom in the European Union by any legitimate means. I see them acknowledge that and I understand it.

[Baroness Ludford]

Legitimate and democratic means.

[Lord Keen of Elie]

Legitimate means and democratic means—let us put it that way. They went to the country in the general election as well and returned with 12 seats in the House of Commons; the Scottish Conservatives returned with 13 seats in Scotland, a part of the United Kingdom that voted to remain. But then perhaps people had intelligently understood that the outcome of the referendum should be respected and that they should support those who were prepared to respect it.

We see reference to a second referendum. That would be seen by many as a constitutional outrage. The United Kingdom voted, by a majority of about 1 million people, to leave the EU. The noble Lord, Lord Grocott, touched upon this point: people such as myself from north of Watford understand the meaning of “leave”. It is not a factual question; it is more philosophical. Their reasons for voting leave cover a spectrum, from the sublime to the ridiculous and from the laudable to the laughable. But it was this Parliament which decided that that was how the issue should be determined, so look to yourselves.

A democratic decision can be reversed. If you choose a party in a general election, you may decide that you are not entirely impressed by it and, at a second general election, decide on a new party of government.

[Baroness Chakrabarti (Lab)]

That is a good idea.

[Lord Keen of Elie]

I hear the noble Baroness, Lady Chakrabarti, saying that that is a good idea, but of course it has no comparison with the present situation, if we want to reverse the decision made in a referendum when it has never even been implemented. That is why people would regard it as something of an outrage.

As my noble friend Lord O’Shaughnessy observed, there are issues with the call for a second referendum. Indeed, many people would regard it as a charade, because those calling for it, or at least many of those calling for it, do not want the people to decide. They want the people to give them what they regard as the correct answer, because they did not give it last time. And there is no reason they would not ignore a second leave vote just as readily as they ignored the first leave vote. Of course, they seek to dress it up as the “people’s vote”. Who do they believe voted in the first referendum—sheep? It was the people’s vote.

I come back to the issue of trust. We have the withdrawal agreement and the backstop, which are and are intended to be temporary means for us to actually exit the European Union and do not, by themselves, determine our future relationship. That is outlined in the political declaration. If we do not trust the party with whom we are engaging, then all forms of agreement and negotiation are simply worthless. At the level of international law you cannot—short of war or gunboat diplomacy—force a nation or an international body to implement a promise or obligation if it decides not to do so. Whether it is an oral promise, a written assurance, a solemn undertaking, an international treaty or something written in blood on vellum, if they are determined to lie to you, to mislead you, to change their minds, you are simply going nowhere.

We hear references to the EU wishing to punish us, wishing to put us into a triple lock, wishing to hold the backstop in perpetuity. Yet the European Union says, entirely candidly, that it wants a fruitful future economic, security and social relationship with the United Kingdom, so why would it want to punish us? It does not want to enter a backstop and if it does, it wishes to do so for the shortest time possible. Nobody appears to have acknowledged that, in fact, great advances were made over the backstop in the negotiations. It was proposed originally for Northern Ireland only, which would have had the most profound consequences for our constitutional situation in the United Kingdom, but that is no longer the case. It embraces the entirety of the United Kingdom and by doing so it breaks the four freedoms that the European Union said would never be broken and produces the very cherry picking that it said it would never contemplate.

In addition, the European Union has made it clear that it wants to implement the terms of the political declaration as soon as possible. If we do not believe it, we should stop now, but if we trust it, then we can place faith in these expressions, whether in a formal treaty, a written declaration or correspondence from the President of the Commission and the President of the Council. If we trust the integrity of our interlocutors, we may better understand the motives of those with whom we negotiate and the extent to which they are truly willing to compromise. We often see the European Union as concerned with economics, social policy and politics, but in reality I suspect that it considers its priorities to be political, social and economic. That is one reason so many people in the United Kingdom chose to leave: they were against the notion, that underpins even the original treaty of Rome, of ever-closer political union.

The withdrawal agreement and political declaration have to be read together and in good faith. We have to trust the promises that are made in good faith and understand the need for compromise on both sides.

Looking to ourselves, we perhaps need to remind ourselves that the referendum was not a choice between good and evil or between ruin and redemption. My noble friend Lord Forsyth of Drumlean suggested at one point that the most reverend Primate the Archbishop of Canterbury had implied that all those who voted leave would go to hell. I do not believe that he suggested any such thing.

[Lord Forsyth of Drumlean (Con)]

I suggested no such thing.

[Lord Keen of Elie]

I apologise, but that was my understanding.

[The Archbishop of Canterbury]

That would be above my pay grade.

[Lord Keen of Elie]

I was going to say that, even if the most reverend Primate had contemplated such a thing, he would have left room for repentance.

If we can again trust and comprehend the art of compromise, we can tell the other place that the time has come where the alternatives are worse, that we must respect the decision of the people given in the referendum and that we must proceed with the withdrawal agreement.

I shall touch on some of the observations that were made during the course of this debate. The noble and learned Lord, Lord Thomas, referred to the attempts to secure mutual recognition in the context of judicial issues. I acknowledge that steps were taken to achieve that and that it has not yet been achieved.

The noble Baroness, Lady Thornton, referred to the idea of participation in European Union programmes going forward. That is something that is reflected in the political declaration.

The noble Earl, Lord Clancarty, and the noble Baroness, Lady Manningham-Buller, talked about the need for reciprocal mobility in the areas of science and research. Again, those are matters that will be the subject of negotiation going forward.

The withdrawal agreement is our means of leaving the EU; it is not the determination of our future relationship. That is why, in the context of the future of services, and in particular, financial services, the political declaration includes commitments to co-operation on regulatory and supervisory matters.

In relation to security, the noble Baroness, Lady Manningham-Buller, pointed out how that is preserved going forward, albeit there is the issue of police co-operation, which is so important, but which is maintained beyond the EU by reciprocal arrangements—for example, in the case of Norway and Iceland, which are not within the EU but still are able to maintain the sort of relationship that we would intend to have going forward. In all those areas, we are able going forward to contemplate a partnership with the European Union that will reflect our standards, our concerns, our security and our common interest in these areas.

Can I come on, though, to the Motion that has been tabled by the noble Baroness, Lady Smith? The noble Baroness, Lady Hayter of Kentish Town, touched upon that Motion. I will come on to that in a moment, but in doing so, she also referred to the fact that in recent times we have seen a devaluation in the pound that is without precedent since the war—she mentioned the war. I think she will find that Harold Wilson, with Denis Healey as his Chancellor, devalued the pound/dollar rate from four to 2.8—which was rather more severe than anything we have experienced in the recent past.

Can I come on—

[Noble Lords]

Oh!

[Lord Keen of Elie]

I think that noble Lords will find, if they check the timings, that I am within my time, but even if I am without, I am going to make an observation about the noble Baroness’s Motion.

May I turn to the Motion, in particular its third part? I remind noble Lords of the terms, because they are important. The Motion regrets that,

“withdrawal from the European Union on the terms set out in the Withdrawal Agreement and Political Declaration laid before Parliament would damage the future economic prosperity, internal security and global influence of the United Kingdom”.

Of course, it has been most carefully drafted by the noble Baroness and the ambiguity inherent in it is no doubt deliberate.

We have a situation in which some noble Lords take that third part of the Motion and say, “I think the withdrawal agreement is less than it should be. I believe the withdrawal agreement is not perfect and therefore I can support this part of the Motion. But of course I believe that the withdrawal agreement should be approved in the other place because it is the sensible way for us to go forward and leave the European Union”. There are those of your Lordships who have indicated that that is their understanding of the third part of the Motion. Yet there are others—and I note that the noble Lord, Lord McNally, is one of them—who take that third part of the Motion to say, “The withdrawal agreement is damaging in the following ways and as a consequence I do not support the idea that the House of Commons should approve it”. So there is a clear ambiguity built into the third part of the Motion, when what we really want to send to the House of Commons is a view about what it should do with the withdrawal agreement, not the result of an ambiguous Motion, which would draw some people into approving it because they believe that the withdrawal agreement should not be approved, and others to say, “The withdrawal agreement is less than perfect but it should be approved”. I ask all noble Lords to consider whether they want to be party to such an ambiguous statement.

It is in these circumstances that I thank noble Lords for their attention and invite them to consider carefully whether they are prepared to approve the Motion that is about to be moved.

Motion agreed.

Prisoners: Imprisonment for Public Protection Sentences

Lord Keen of Elie Excerpts

Thursday 20th December 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

To ask Her Majesty’s Government whether in the case of imprisonment for public protection prisoners they will encourage the Parole Board to apply the legal principle that the longer the prisoner serves beyond the tariff period, the clearer should be the Parole Board’s perception of public risk to justify the continued deprivation of liberty involved.

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

My Lords, the Parole Board may direct release only if satisfied that detention is no longer necessary for the protection of the public. The board will base its decision on a comprehensive assessment of the risk posed by the individual prisoner. This will be determined by reference to all the offender’s circumstances.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, call it what one will, the plain fact is that the longer a prisoner serves beyond his tariff, the more he is detained beyond due punishment. Worboys had a tariff term of eight years and within two years of that was recommended for release—a case that has done terrible damage to the IPP cause. However, I am concerned with those at the other end of the IPP spectrum. Six years after the regime was abolished, of the 2,500 remaining IPP prisoners, 261 with a tariff of less than two years have served more than eight years beyond their tariff. Indeed, 129 have served over 10 years beyond their less than two-year tariff for punishment. Does the Minister not agree that that is gross injustice, and that the burden of proving a prisoner to be unsafe for release should in future lie with the detaining authority?

[Lord Keen of Elie]

My Lords, it is important to remember that the original sentence was imposed on individuals who had committed serious violent or sexual offences so that, at the end of the day, not only should they be punished for those serious offences, but the public and future potential victims should be protected. The Parole Board must, as I said, have in mind all material considerations when it scrutinises the level of risk that is or is not acceptable when one of these prisoners applies for parole. Of course, the time spent in prison post-tariff will be a relevant consideration; albeit that that is not a principle of law, it clearly is one of the considerations the Parole Board will have in mind.

[Lord Blunkett (Lab)]

I rise to support the noble and learned Lord, Lord Brown, and once again to accept my responsibility for the failure of Parliament to be clear enough about the intention when laying down this law back in 2003. It is absolutely clear now that people are serving way beyond their tariff in an unacceptable fashion under the IPP—but also under previous legislation. I have been trying to help an individual, David McCauliffe, who had a tariff of seven years and has now served 31 years. Is it not time for the Ministry of Justice, with the Parole Board, to put in place rehabilitation facilities that allow people who have served that kind of sentence to transition from existing prison facilities back into normal life?

[Lord Keen of Elie]

My Lords, the Government are of course concerned that the Parole Board should have the opportunity to consider even these extreme cases, and it does so regularly. Regrettably, there are prisoners who have not responded to any of the regimes available to them while in prison, and in those circumstances provision is made for what are termed progression regimes, in which prisoners serving an indeterminate sentence have, for example, even been excluded from a move to an open prison because of their behaviour. In addition, psychological assistance is given to those prisoners, in the hope that they can progress towards release. However, I remind noble Lords that we must have regard to the fact that some of them have committed very serious violent and sexual offences, and as long as they remain a real risk to the public, their release has to be the subject of clear and careful consideration.

[Lord Reid of Cardowan (Lab)]

My Lords, I hesitate to take issue with the noble and learned Lord, Lord Brown—even more so when it means also taking issue with my noble friend Lord Blunkett—but the key thing here is that this is not an extended punishment; it is a regime to protect the public. I never understood the principle referred to in the Question today, which is that for subsequent parole reviews we must show that the prisoner is clearly more dangerous than he —it is normally a man—was the last time parole was considered. If someone is a clear and present danger to the public, particularly because of terrible violent or sexual crimes, it is justifiable, after due consideration by the Parole Board, to extend that until such time as he or she is no longer a clear and present danger to the public.

[Lord Keen of Elie]

My Lords, I emphasise that the number of prisoners held under IPP sentences continues to decrease at an accelerating rate. However, I regret to observe that that leaves behind a serious core of sometimes incorrigible individuals, which presents real difficulties for the Parole Board when it addresses the question of release. Indeed, it is noticeable that as we have increased the rate of release of IPP prisoners, the rate of those being recalled under licence for serious breaches of it has also increased.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we abolished these sentences under LAPSO. The continuing rate of release is extremely low. This injustice cries out to be cured, and that can be done by changing the test under Section 128 of LASPO, as was always intended. Does the noble and learned Lord appreciate that the number of incidents of self-harm among IPP prisoners is more than double that for the rest of the prison population? Is that not evidence of the despair these sentences cause?

[Lord Keen of Elie]

My Lords, it is regrettable that the number of incidents of self-harm is both as high as it is and higher for IPP prisoners. However, many of these prisoners suffer from serious psychological issues, which is one reason for that unfortunate statistic. There is no intention at present to change the onus under Section 128 of the Act, but as the Supreme Court observed in a recent decision:

“Although the default position is that detention will continue ‘unless … the Board is satisfied that it is no longer necessary’ … the Parole Board is an investigative body which will make up its own mind on all the material before it”.

Voyeurism (Offences) (No. 2) Bill

Lord Keen of Elie Excerpts

Report stage (Hansard): House of Lords
Tuesday 18th December 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Report be now received.

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

My Lords, I want to make one or two observations. This is a simple but important piece of legislation with a clear purpose; namely, to close a gap in the law around the taking of upskirt images.

I am grateful for the positive way in which noble Lords have engaged in debate over the Bill. There is clearly a strong consensus that this behaviour be addressed, and I am pleased that noble Lords and Members of the other place have agreed that the Bill works as drafted, and that it will pass through this House unamended.

I would like to thank a number of noble Lords for their engagement with the Bill: the noble Baroness, Lady Chakrabarti, for her support throughout the process and for her commitment to ensuring that the Bill passes through this House rapidly; and the noble Lord, Lord Marks, and the noble Baroness, Lady Burt, for engaging in the debates, for challenging us to think about whether the purposes of the Bill are, indeed, fit for purpose and for raising the important issue of the onward sharing of non-consensual intimate images. I remain confident that we have taken the right decision on that matter by agreeing to review this first with the Law Commission. I also thank the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for their contributions to the debate and discussion.

I consider that the review in two years’ time that we committed to in the other place will be a good opportunity to assess how these offences are working in practice. With that, I beg to move.

Report received.

Non-Contentious Probate (Fees) Order 2018

Lord Keen of Elie Excerpts

Tuesday 18th December 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 5 November be approved.

Relevant documents: Special attention drawn to the instrument by the Joint Committee on Statutory Instruments, 40th Report, 6th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

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

My Lords, the title is instructive: “Non-contentious”. The purpose of the draft order before us today is to implement a new, more progressive banded structure of fees for a grant of representation, commonly known as a grant of probate. The banded fees relate to the value of the estate. These new fees come under the category of “enhanced fees” and noble Lords may be aware that in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014, Parliament has given the Lord Chancellor the power to set certain court and tribunal fees above the cost of providing the service. The income generated by these enhanced fees must be used to fund an efficient and effective system of courts and tribunals.

Noble Lords will recognise the importance of a fair and functional justice system not only to court users but to society as a whole. The decisions made in the courts and tribunals convict the guilty, protect the innocent and help ordinary people take back control of their lives. This Government are committed to providing a world-class courts and tribunals system that supports victims and vulnerable people, is easy for ordinary people to use and maintains access to justice for all.

However, such a system requires proper funding. It has long been the case that users of our courts system contribute towards its costs, and we believe that this remains both relevant and reasonable as it reduces the burden on other taxpayers. Crucially, by asking those who use the courts to pay more where they can afford to do so, we are able to fund areas where we charge no fees to vulnerable victims and users: for example, for domestic violence and non-molestation orders, and for cases before the First-tier Tribunal concerning mental health.

The Government are investing £1 billion to modernise and upgrade the courts system so that it works even better for everyone, including victims, witnesses, litigants, judges and legal professionals. This includes introducing changes to our probate service, which offers an important, valuable and supportive service to those who are bereaved. The change to the probate service will aim to reduce the burden on those who are applying for a grant of probate. Some examples of how we are doing this include providing the public or their representatives with the option to initiate cases online; enabling applicants to pay more conveniently; and replacing the swearing of an oath with an online statement of truth.

In 2017-18 the running costs of Her Majesty’s Courts & Tribunals Service were £1.8 billion. We recovered only £710 million of that in fee income. That position is unsustainable, and it is right that we look to the users of that service to contribute more. Parliament understood the importance and value of our world-leading justice system and the financial pressure that the Courts & Tribunals Service faces, which is why it passed the power in the 2014 Act to which I referred a moment ago. It is under this power that the Government have laid this draft order.

The order introduces a new, fairer banded structure for probate fees. The fee payable is no longer a flat fee but instead relates to the value of the estate—a more progressive proposal. The new fees are fair and proportionate. Under the new structure, we are raising the threshold below which no fee is payable from £5,000 to £50,000, so that more modest estates are protected. That will lift around an additional 25,000 estates per year out of having to pay fees altogether. Overall, more than half of all estates will pay nothing, either because they are exempt or because they do not require a grant of probate. For those which pay, around 80% of estates will pay £750 or less. Moreover, the new model will mean that the revised fees will never be more than 0.5% of the value of the estate.

As noble Lords will know, the previous Government initially announced their plans to introduce enhanced probate fees on 24 February 2017, following a public consultation. The relevant draft affirmative SI was laid in Parliament soon after. The order was debated and passed by the Commons Delegated Legislation Committee on 19 April 2017, but the announcement of the general election meant that there was no time for it to be debated and considered for approval in both Houses.

Various criticisms were made of the previous order, and the Government looked very closely at these in deciding to reintroduce changes to probate fees. These concerns were centred largely on the level of fees rather than on the principle of a banded structure. The criticisms were that the fees were excessive. The Government accept this point and the revised fee scheme we are introducing has reduced fees payable at all bands. The highest fee payable has reduced from £20,000 under the previous proposal to £6,000 under this proposal. The new banded fee structure does not amend the underlying policy rationale and will retain the same progressive banded structure as the earlier proposal, in which the fee payable relates to the value of the estate. This represents a fair and proportionate fee payable for obtaining a grant of probate.

I acknowledge that the JCSI has drawn the attention of the House to this order, and the SLSC also reported concerns. I have also noted the concerns raised by the noble Lord, Lord Beecham, in his amendment, which are related to the SLSC report. Furthermore, I acknowledge the amendment tabled by the noble Lord, Lord Marks, which echoes points raised by the JCSI. I will therefore address these points in turn, which I hope will outline clearly the Government’s position in relation to these arguments.

The JCSI reported the draft SI for doubtful vires and unexpected use of powers, as it felt that the new fees amounted to a tax and questioned whether the imposition of this level of fees was anticipated when the primary power was approved. It went on to argue that the basic premise of a fee is directly related to the cost of the service. The SLSC also made these points but went further, arguing that, as a result of the savings envisaged as part of delivering a reformed probate service, the fees were disproportionate. I must respectfully disagree with both committees.

Section 180 gives the Lord Chancellor the explicit authority to impose enhanced fees to,

“prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”,

and that is what this order seeks to do. In doing so, the Lord Chancellor must have regard to, among other factors,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible, including in particular any costs incurred by those courts and tribunals that are not being met by current fee income”.

The Act is also clear that any income from these fees,

“must be used to finance an efficient and effective system of courts and tribunals”.

These provisions clearly demonstrate Parliament’s intention that the Lord Chancellor should be able to set fees above cost in one part of the system to subsidise other parts of that system, and to maintain the effective operation of the system as a whole.

The JCSI has suggested that the concept of a fee is subject to inherent limitations in relation to the service for which it is charged. Again, we do not accept this. The specific legislative provision in Section 180 of the 2014 Act breaks the link between the cost of the service and the fee that may be charged. This was clearly the intention of Parliament in making such a provision. The proposals in the order are consistent with the primary power and the assurances given to Parliament at the time the Bill was considered. This is not the first time that the Government have sought to introduce enhanced fees or fees which relate to the value of the issues at stake—for example, fees for certain civil money claims. For these reasons, we do not consider that the draft probate fees order is an unexpected use of the Section 180 power. We are using it in exactly the way that Parliament intended.

Finally, I have made it clear that, as the fee is not tied to the cost of the service under the enhanced fee powers, I disagree with the idea that the fee changes are disproportionate, in light of reform to the probate service which aims to make the service more efficient. As we have already made clear, users will experience a better system which has benefited from significant investment from the taxpayer. It is still right that the additional income is used to cross-subsidise in other areas where vulnerable users and victims are charged either no fee or a nominal fee.

More specifically, we have significantly reduced the fees at all levels compared to our previous proposal, which I believe responds to concerns about what fee is proportionate. We are clear that this is an application fee for a specific service: to obtain a grant of representation to deal with a person’s estate. This is distinct from general taxation, which is paid into a consolidated fund held by HM Treasury. Charging fees is justified as a way of funding our courts system to provide access to justice, which the Government are committed to maintaining.

I have already reminded your Lordships’ House that the Lord Chancellor, when setting these fees, is required to have regard to the financial position of the courts and tribunals. Another factor that must be considered is the principle that access to the courts should not be denied. In considering this fundamental principle of access to the courts, we have been careful to ensure that nobody will find themselves unable to apply for a grant of probate on account of the fee. These fees will never be unaffordable. The probate fee and any reasonable expenses are recoverable from the estate and determined by the value of that estate, so the executor will not be permanently out of pocket. Any difficulty in paying the fee will, by definition, be one of cash flow rather than affordability. I would nevertheless like to take this opportunity to set out the safeguards in place to support executors.

In most cases, we believe that the executor will be able to access funds in the estate to pay the fee—including, for example, bank accounts and savings belonging to the estate. HMRC data indicates that the average estate is around 25% cash, and the fee will never be more than 0.5% of the value of the estate.

We have been working with UK Finance, the Building Societies Association and the Money Advice Service. The industry has set out bereavement principles to encourage its members to support the bereaved and allow necessary payments to be made where it is possible to do so within the law. Furthermore, where an executor is not successful initially in accessing funds from a bank or building society account, the probate service is willing to write to the relevant institution to provide reassurance that the assets are needed to pay the fee. Other avenues of funding will also be available, including a personal or executor’s loan. In those cases where executors are unable to take advantage of any of these options, they can apply for a limited grant of probate to provide them with partial access to specific assets of the estate for the sole purpose of paying the fee. This application would not attract an additional fee.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to all parts of the House for contributions to the debate on this order. The noble Lord, Lord Pannick, correctly identified that there are two issues. One is whether the proposal is constitutional or unconstitutional. The second concerns fairness. Of course, at times the two arguments have merged. I will endeavour, however, to address each in turn.

On the question of whether the instrument is intra vires or not, I have to say that it is quite clear that statutory justification for it is given by Section 180 of the 2014 Act. The noble and learned Lord, Lord Judge, may, for reasons he has expressed in the past, deprecate the extent to which Parliament has given powers to the Executive in this regard: I think that in this instance it is entirely proper. Nevertheless, the power is there. On the point raised by the noble Baroness, Lady Hamwee, with reference to Section 180(3)(a) and (b), subsection (b) was referred to in the impact assessment, where it was determined that there was no identifiable or significant impact upon competitiveness in this context—which is hardly surprising in the circumstances.

The noble Baroness, Lady Meacher, suggested in the context of the vires of the instrument that it was necessary that the fee should be equal for all involved, otherwise it would be a tax. With great respect, at present there is no fee for estates worth less than £5,000: the current system is not equal in that respect. It is certainly my recollection that the probate fee was progressive until about 1999. The fixed fee came in only in the recent past, less than 20 years ago. Again, one has to see this in context. Let me be clear: the idea of progressive fees is not exceptional or unusual. A civil money claim for £1,000 may often be far more complex and demanding than a civil money claim for £100,000, but the fee in respect of civil money claims is progressive by reference to the sum to be recovered. These elements already exist in our system.

With this instrument, we are intending to remove more than half of all estates from any probate fee whatever, yet the logic of the noble Baroness, Lady Meacher, would be that we cannot do that because if we did the fee would not be equal for all involved. It is entirely appropriate that there should be a progressive fee system, just as there has been in the past and just as there is with other elements of judicial and related claims. In that context, an application for probate is an application for, in essence, a determination of status in order that somebody can ingather an estate and distribute it, so it is in a sense a judicial process, albeit, as it has developed over the years, it is seen as an administrative application.

There is clear statutory authority for the making of this order and the introduction of these sensible and proportionate fees in this context. The provision is there; I will not seek to repeat it. On the issue of fairness, I emphasise that more than half of all estates will be taken out of any fee whatever, the maximum fee will be £2,500, and the fee can never exceed 0.5% of the value of the estate.

The noble Lord, Lord Sharkey, raised some of the observations that have been made with respect to charities. Let us be clear: if a legacy is left to a charity and it is of a fixed sum, it will not be impacted at all by the provision. It would arise only in those—perhaps exceptional—circumstances where the entire estate is left to the charity. One has to appreciate that it is only in those exceptional circumstances that there could be any indirect—I emphasise that—effect on the value of the legacy itself.

At the end of the day, we are taking a proportionate and sensible approach to the need to ensure that we can maintain access to justice throughout our entire courts and tribunals system. We have been fair with regard to the level of the fees which have now been fixed for this purpose. I emphasise that we are dealing with a question of fees, not with the issue of a tax. In that regard, therefore, I invite noble Lords to concur with my Motion.

[Lord Beecham]

How does the Minister reconcile the position the Government have taken with the guidance to departments in Managing Public Money, to which I referred?

[Lord Keen of Elie]

There is clear statutory authority for the fixing of these fees in order that there can be an element of cross-subsidy between the various elements of the courts and tribunals system. It is justified by that statutory permission.

[Lord Marks of Henley-on-Thames]

My Lords, the Minister put his case, supported by other noble Lords, on the basis that these probate fees will be used to, in effect, cross-subsidise the courts and tribunals system, and for increased spending on access to justice. Your Lordships will know that I am a staunch advocate of access to justice, that I believe in spending on legal aid and in renewing the court estate, and that I am concerned about the quality of judges. But the spending for those laudable aims ought to be met out of general taxation, raised in the ordinary way envisaged by the Bill of Rights and other statutes since: by amendable primary legislation subject to the full scrutiny of Parliament, not out of the hypothecation of excessive fees—which are, to use the committee’s phrase, taxes “dressed up as ‘fees’”—to subsidise that sort of spending. I agree with the noble Lord, Lord Beecham, that the Government’s guidance on managing public money, which compares fees with the costs of producing a service and says that that should be borne in mind by government, is apposite.

I usually agree with the approach of the noble Lord, Lord Pannick—which has persuaded the noble and learned Lord, Lord Judge, and, to a certain extent, the noble and learned Lord, Lord Mackay—on statutory construction. However, it escapes me how he managed to construe Section 180 of the 2014 Act without looking at the meaning of “fee”. Section 180(1) provides:

“In prescribing a fee under an enactment specified in subsection (2), the Lord Chancellor may with the consent of the Treasury prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”.


The noble Lord says that he can infer from that—and the Minister jumps on that statement—that it does not matter by how much the fee exceeds the cost of providing the service. I respectfully commend the approach of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who asked that very question. There has to be a stage at which the amount charged so far exceeds the cost of the service that the Government are not charging for a service but are seeking to raise money. That is what is involved in the cross-subsidisation and at this level I suggest it has to be a tax. That is the way that it was treated by Managing Public Money, the Government’s guidance, and that is the way that both the Joint Committee and your Lordships’ committee saw it. I do not accept the construction contended for by the noble Lord.

It is disappointing that the noble Lord, Lord Beecham, suggested that the Labour Benches will abstain. I hope that noble Lords on the Labour Benches will in fact support my fatal amendment. Of course, it is a serious matter, but I suggest that this statutory instrument ought to be struck down precisely because it is seeking to dress up taxes as fees in a way that is impermissible. That is a wrong use of the statute. In answer to the noble and learned Lord, Lord Judge, the statute may be slightly carelessly drawn—it could have been more specific—but that should not be used by Ministers to drive a coach and horses through the statute when seeking to rely on the enabling powers to pass statutory instruments. That is what they do when they use the permission to exceed the cost to drive through a wild, excessive charge such as this one.

Striking this statutory instrument down is the correct course to take. A regret amendment will not achieve the end that ought to be achieved. The Government will be at liberty to reconsider their position and bring back revised fees, certainly, but not fees on this scale, which many noble Lords have deplored. I have heard nothing that dissuades me from seeking to test the opinion of the House.

European Union (Withdrawal) Act 2018

Lord Keen of Elie Excerpts

Tuesday 11th December 2018 Lords Chamber

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

My Lords, with the leave of the House I will repeat the Answer to an Urgent Question which was given by my honourable friend Robin Walker, the Parliamentary Under-Secretary of State for the Department for Exiting the European Union. The Statement is as follows:

“Mr Speaker, I recognise this was a question which was the subject of much discussion and some speculation yesterday. I hope to be able to put honourable Members’ concerns at ease.

Put simply, in keeping with the clear intention of the European Union (Withdrawal) Act 2018, the Government will ensure that the question of whether to accept an agreement is brought back to this House before 21 January. If Parliament accepts that deal, we will introduce the EU withdrawal agreement Bill to implement the withdrawal agreement in domestic legislation. If Parliament chooses to reject the deal, the Government will be required to make a Statement on their proposed next steps and table a Motion in neutral terms on that Statement. Following the passage of the amendment to the Business of the House Motion last week, that Motion will be amendable. So it is our clear intention that this House will consider this matter before 21 January and have the opportunity to decide on the deal.

But let me also say this clearly: in the unlikely and highly undesirable circumstances that as of 21 January there is no deal before the House, the Government would bring a Statement to the House and arrange for a debate, as specified by the law. I am confident that we will have a deal the House can support, but I hope the Statement puts to rest the concerns of honourable Members about the Government’s commitment to meet the spirit, as well as the letter, of the withdrawal Act and to respect the will of the House”.

[Baroness Chakrabarti (Lab)]

My Lords, I am genuinely grateful to the Minister for that Answer which clears up the apparent lack of clarity from the Prime Minister yesterday on the legal force of the 21 January deadline and the lack of certainty from the leader of the House of Commons yesterday on the ongoing force of Dominic Grieve’s amendment. However, six weeks is still a very long time for the errand of collecting mere assurances, not least when the Prime Minister openly contemplates,

“the risk of an accidental no deal”.—[Official Report, Commons, 10/12/18; col. 25.]

The clearest thing of all is that yesterday’s House of Commons vote was pulled in pure, blind panic with little regard for the economic and constitutional consequences for our country.

[Lord Keen of Elie]

My Lords, I do not accept the allusion to uncertainty that the noble Baroness referred to. We are following a discernible course of action in order to implement a demanding issue in accordance with the will of the people of the United Kingdom. As regards the idea that it will be six weeks, no time limit has been fixed for the period in which this matter will be the subject of further assurance and in which it will be brought back to Parliament. What we have said is that 21 January is a date beyond which we will not go.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, however well intentioned, the Answer just repeated simply ignores the legal problems. Pulling yesterday’s vote has left us mired in a legislative no man’s land from which the withdrawal Act offers us no escape. Section 13(4) does not apply because the House of Commons did not decide not to pass the Government’s resolution—it decided nothing—so there is no requirement under that subsection for the Government to set out their proposals within 21 days. Subsections (8) and (11) do not apply because they depend on an absence of an agreement in principle, but there is such an agreement, even though not one approved by the Commons. So there is no obligation on the Government under the Act to set out their proposals.

It follows that as matters stand, the country is in a state of limbo. There is no legislative significance to 21 January and the Government are legally unconstrained by time limits, even though the time until March is running out. If the Government will not give us a firm timetable, so long as the text of the withdrawal agreement remains in place but unapproved, the only solution may be for the House of Commons to find a way to force a vote on the Government’s resolution put to it last Tuesday and reject it, so activating the obligation for the Government to make a Statement within 21 days under subsection (4). Does the noble and learned Lord agree with this analysis?

[Lord Keen of Elie]

My Lords, I commend the noble Lord upon his exercise in statutory interpretation, which would undoubtedly attract an A-. The position at present is that in keeping with the spirit of the Act the Government will ensure that the matter is brought back to the Commons before 21 January.

[Lord Foulkes of Cumnock (Lab)]

My Lords, we are all obliged to the Minister for his explanation. Will he now confirm that what the noble Lord, Lord Kerr, has been saying again and again has now been confirmed by the European Court of Justice, that we can unilaterally agree to withdraw our Article 50 withdrawal and remain part of the European Union now that we know the consequences of leaving? Is that not something that the noble and learned Lord, Lord Mackay of Clashfern, has said on a number of occasions would be the sensible thing for Parliament to do and get on with running this country?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the noble Lord, Lord Kerr, has said many things with regard to Article 50, but the Court of Justice of the European Union has given its ruling on its interpretation of Article 50, and it speaks for itself.

[Lord Harris of Haringey (Lab)]

My Lords, the noble and learned Lord told the House that the Government will act within the spirit of the legislation and propose a vote in the House of Commons by 21 January, although that is rather late. How much credence can be placed in the Government acting in the spirit of something when yesterday morning, Ministers were fanning out around the country promising that the House of Commons would be voting today? Is this not a Government who break their promises and break the undertakings they have given?

[Lord Keen of Elie]

No, my Lords, this is a Government who act, and will continue to act, in the public interest.

[Lord Wallace of Saltaire (LD)]

My Lords, the House was told some months ago that there was a substantial body of legislation following the withdrawal Act to be carried through before 29 March, including a very substantial number of statutory instruments. The time between 21 January and 29 March is extremely short. Will the Government Front Bench provide a Statement as soon as possible on what legislation will be required to implement any agreement by 29 March, what can be left until later and how the House might manage that between the last week in January and the final week of March?

[Lord Keen of Elie]

It will of course be for the Government to determine what legislation is brought forward and when. The Government remain confident that there is sufficient time to bring forward the necessary legislation for our exit from the European Union as at 29 March of next year.

[Lord Hain (Lab)]

My Lords, is the Minister aware that governance in this country has become an absolute laughing stock, both domestically and internationally? Is it not right that we call a people’s vote to get us out of this mess and give people the opportunity to decide to remain within the European Union?

[Lord Keen of Elie]

I gently remind the noble Lord that what he refers to as the people’s vote is actually a second referendum; that the first referendum had on the paper the question of whether or not we remain in the European Union; and that that question has been answered.

[Lord Pearson of Rannoch (UKIP)]

Now that the Luxembourg court has agreed with what I have been saying for many months—that we can in fact resile from clauses 2 to 5 of Article 50—does that not present us with an opportunity? Can we not now go through the Council of Ministers to offer European citizens continuing mutual residence and free trade under the WTO, all of which is much more to the advantage of the people of Europe than it is to ours? When that is agreed, we can discuss with Brussels how much money we give them, if any.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, this Government have no intention to withdraw the Article 50 notice, which has been tendered in accordance with the relevant treaties.

[Lord Watts (Lab)]

My Lords, given that the Prime Minister has now realised that her deal will not stand up, are the Government looking at a Plan B? Are they looking at the Norway option or other options to get us out of the mess that they have got us into?

[Lord Keen of Elie]

My Lords, the matter of the present agreement is still the subject of ongoing discussion with members of the EU 27 and with the institutions of the European Union. Once those discussions are completed, of course the agreement will be brought back to this Parliament.

[Lord Hamilton of Epsom (Con)]

My Lords, as the meaningful vote is not being held today and may well be held on, say, 20 January, will there be another 21 days after that for the Government to respond?

[Lord Keen of Elie]

In the event that the House of Commons resolves not to approve the withdrawal agreement, in accordance with the provisions of Section 13, it will be a requirement that a Minister of the Crown will, within a period of 21 days, make a Statement to the House with regard to our intentions.

[Lord Judd (Lab)]

My Lords, does the Minister accept that meanwhile there is real urgency about what happens next and that the 21 January strategy should in a sense fade into the background because immediate information and certainty is necessary? I am constantly approached by people in business, the professions, the health service and universities about the uncertainty prevailing in their planning for the future. We are going into the new year with no further indication of certainty on which they can plan.

[Lord Keen of Elie]

My Lords, certainty can be embraced in due course by proving the withdrawal agreement that has been laid before Parliament.

Brexit: Legal Position of Withdrawal Agreement

Lord Keen of Elie Excerpts

Monday 3rd December 2018 Lords Chamber

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

My Lords, with the leave of the House, I will repeat a Statement made in the other place by my right honourable and learned friend the Attorney-General. The Statement is as follows:

“Mr Speaker, with your leave, I wish to make a Statement to the House. I should make clear the context in which I consider that I am to do so. My Statement today is intended to inform the debate that is shortly to commence on the Motion to approve the withdrawal agreement, and the political declaration on the future relationship, concluded with the European Union by my right honourable friend the Prime Minister.

It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events. Ministers are advised by their own departmental lawyers, and the points that arise for consideration by the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government.

Therefore, my Statement today is complemented by a detailed legal commentary, prepared for the purpose of the debate and published this morning, which analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them. There is, of course, no want of other sources of helpful commentary available to the House.

In making this Statement in these unusual circumstances, and in answering any questions that honourable Members may have, I consider that I have a solemn and constitutional duty to this House to advise it on these legal questions objectively and impartially and to place such legal expertise as I have at its disposal. The House may be sure that I shall discharge this duty with uncompromising and rigorous fidelity. If this agreement is to pass this House, as I strongly believe it should, I do not believe it can pass under any misapprehension whatever as to the legal matters on which that judgment should be based.

It is important to recall that the matters of law affecting the withdrawal agreement can only inform the essentially political decision that each of us must make. This is not a question of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed.

In the time available to me, it is impossible to have covered each of the matters of law that might arise from 585 pages of complicated legal text, and no Attorney-General—certainly not this one—can instantly possess the answers to all the pertinent questions that the skill and ingenuity of honourable Members may devise. However, I am aware that there are certain parts of the agreement whose meaning attracts the close and keen interest of the House, and it is to some of these that I now turn.

The first is the Northern Ireland protocol and some of the other provisions of the withdrawal agreement relevant to it. The protocol would come into force, if needed, on the conclusion of the implementation period on 31 December 2020, unless, pursuant to Article 132 of the agreement, both the United Kingdom and the EU agree to a single extension for a fixed time of up to one or two years.

By Article 1, the protocol confirms that it would affect neither the constitutional status of Northern Ireland nor the principle of consent as set out in the Belfast—or Good Friday—agreement. The statutory guarantee that a majority in Northern Ireland would be required to consent to a change in its constitutional status as part of the United Kingdom, and the associated amendment to the Irish constitution to remove the Republic of Ireland’s previous territorial claim, remain in place.

Once in force, by Article 2(1) of the protocol, the parties would be obliged in good faith to,

“use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol”.

There is a separate but closely related duty on the parties under Article 184 of the agreement to negotiate expeditiously and use their best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by Article 1(4), the protocol is expressly agreed not to be intended to establish a permanent relationship but to be temporary. That language reflects the fact that Article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states.

If either party did not comply with its obligations of good faith, after the implementation period it would be open to them to bring a complaint, under the dispute settlement provisions set out in Articles 164 to 181 of the agreement. These include independent arbitration. Clear and convincing evidence would be required to establish a breach of the obligation.

If the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement, which achieved the stated objectives of maintaining the necessary conditions for continued north-south co-operation, avoiding a hard border and protecting the Belfast agreement in all its dimensions. There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down. How likely that is to happen is a political question to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.

Under the protocol, the United Kingdom would form with the European Union a single customs territory for goods for fiscal or tariff purposes. Accordingly, Northern Ireland would form part of the same customs territory as Great Britain, with no tariffs, quotas, or checks on rules of origin between Great Britain and Northern Ireland. However, Northern Ireland would additionally apply defined aspects of the EU’s single market rules relating to the regulation and control of the supply of electricity on the island of Ireland; goods, including cross-border VAT rules; and the Union Customs Code.

These rules would be enforced as they are now, including preliminary references from Northern Ireland courts to the Court of Justice of the European Union. By these means, the need for any hard border would be avoided and goods originating in Northern Ireland would be entitled to free circulation throughout the EU single market. In all other aspects of its regulatory regime, Northern Ireland would follow the applicable UK legislation, save where these aspects were devolved. By Article 7, a Northern Ireland business would also enjoy the same free circulation of its goods throughout the United Kingdom, while its EU competitor, whether situated in the Republic of Ireland or elsewhere in the single market, would not.

I turn now to the role of Union law and the Court of Justice of the European Union under the withdrawal agreement and within the dispute settlement provisions to which I have referred. It is important to place these provisions in the context of the objectives of the agreement: the orderly exit of the United Kingdom from the EU for our citizens and businesses. To this end, following the implementation period, the agreement provides for the continued application of Union law in defined and strictly limited respects where it is necessary or desirable for legal certainty to do so.

Although we will legally leave the EU and cease to be a member state on March 29 2019, Part 4 of the agreement provides for an implementation or transition period of 21 months, which is designed to enable our people and our businesses to adjust to the changes that are coming. During that implementation period, so as to give the time, predictability and continuity that are needed, it is provided that Union law should continue to apply, and the laws, systems and institutions of the EU will have the same role and functions as before. But on the conclusion of this period, on 31 December 2020, that will come to an end.

Thereafter, Union law and the European Court of Justice will possess a relevance in the UK only in so far as it is necessary, in limited and specific areas, for the winding down of the obligations of our relationship of 45 years. For example, the rights of our own citizens living in EU member states, and of EU citizens in the United Kingdom, are created and defined by Union law. If they are to be preserved in equal measure, and with the necessary consistency and certainty, it is inevitable that the mutually protected residence and social security rights of these particular groups of people must continue to be defined by reference to that law. These rights are provided for in Part Two.

Our citizens living in member states throughout the EU will continue, as is natural, to depend for their ultimate protection on the CJEU, while EU citizens living in the UK will look to the United Kingdom’s independent monitoring authority, set up under Article 159, and to the UK courts. But they will no longer be able, as now, to require our Supreme Court to refer a question of interpretation of their rights under Union law to the Court of Justice of the European Union where the determination of such a question is necessary to resolve a dispute. Instead, pursuant to Article 158, for a fixed period of eight years only the UK courts may refer to the Court of Justice of the European Union a question of interpretation of Part Two of the agreement in the interests of achieving consistency in the enforcement of the rights the citizens of each enjoy, and while the new system is established. After that time our courts will, pursuant to Article 4.5, continue to interpret concepts and provisions of Union law, in the areas in which the agreement applies it, as they always have, and to have due regard to relevant post-implementation case law of the Court of Justice of the European Union where, for example, it may be required for the practical operation of the agreement, such as in regard to the co-ordination of social security rights for the protected EU and UK citizens.

Part Three deals with the lawful conclusion of judicial and administrative proceedings, transactions, processes and other matters that have arisen or commenced under Union legal frameworks before the end of the implementation period and to which Union law and the role of the institutions must continue to apply for their orderly disposition. It allows a four-year limitation period on the power of the Commission to refer to the Court of Justice of the European Union an alleged breach of an obligation incurred prior to the end of the implementation period.

Part Five deals with our agreed financial obligations. It provides under Article 160 for Union law and the jurisdiction of the Court of Justice of the European Union to apply beyond the implementation period only for the time and purpose of closing out the United Kingdom’s financial obligations and entitlements incurred under Union law, again prior to the end of that period.

All of these are inherently time-limited functions and, once they are at an end, the Court of Justice of the European Union will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom.

A dispute between the EU and the United Kingdom about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel, in which the Court of Justice of the European Union has no automatic role. But if the panel needs to, and a question of interpretation of Union law is relevant to the dispute, it can ask the Court of Justice of the European Union to resolve that question only. It is then for the panel to apply that interpretation to the facts of the dispute and thus decide how the dispute should be resolved.

The divorce and separation of nations from long and intimate unions, just as of human beings, stirs high emotion and calls for wisdom and forbearance. It calls also for calm and measured evaluation by the House of the terms of the separation agreement in the light of the complexity and difficulty of the task it is intended to achieve. I commend this Statement to the House”.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

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

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

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

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


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

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

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

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

[Lord Morris of Aberavon]

My Lords, I speak as a former Attorney-General. I adhere to the convention that it is not in the public interest to disclose the fact or the content of the law officers’ advice. However, there have been exceptions, such as the debate on the Maastricht treaty and the exceptional circumstances of the Chilcot inquiry. We are grateful for the 43-page document setting out the legal position, but I ask specifically whether, in the public interest, without going into detail, the Attorney-General has reserved disclosure on any matters that he has advised on. Secondly, will the Minister confirm that there is nothing in the document incompatible with the advice that the Attorney-General has given to Her Majesty’s Government?

[Lord Keen of Elie]

My Lords, I fear that to answer the first question would be to breach the relevant law officer convention, but with regard to the second, let me be clear: there is no inconsistency between any point made in the legal commentary and anything that might or might not have been said in government.

[Lord King of Bridgwater (Con)]

My Lords, does my noble friend agree that there is a very good reason for the convention that advice from the Attorney-General can be kept confidential to the Government? Nobody who voted on that proposal for a contempt Motion has the slightest idea whether some of that advice might be advantageous to the people against whom—or with whom—we are negotiating. I do not know how many noble Lords have listened in the past two hours to the extraordinary exposition by the Attorney-General—I think, quite without precedent—in which he undertook to answer any question from anybody in the House, seeing himself as responsible not merely to the Government but to Parliament, to the Commons, in his particular position. He discharged it effectively, and nobody who voted in the original vote that the papers ought to be published had the slightest idea that that was how the Attorney-General would approach his responsibilities.

[Lord Keen of Elie]

I thank my noble friend for his observations and entirely concur. I emphasise a point he touched on: we are engaged in continuing negotiations with the European Union to determine our future relationship. It would not be appropriate for us to disclose matters that would impact on the conduct of the negotiations, any more than we might expect the European Union to disclose to us the confidential legal advice that it may or may not have received in conducting those negotiations.

[Lord Butler of Brockwell (CB)]

My Lords, in the giving of advice in any letter or papers that the Attorney-General submits to the Cabinet, does not good government require complete candour not only on the strengths but on the vulnerabilities of the Government’s position? It would be impossible for the Attorney-General to write with such candour if he were aware that his advice would be published.

[Lord Keen of Elie]

I am obliged to the noble Lord, who draws on a great deal of experience where these matters are concerned. I entirely agree with his observation: it would render the law officers’ position almost impossible when advising government fully, candidly and without reservation, if it was felt that that advice was then to be put into the public domain—let alone put into the public domain when we were carrying on relevant negotiations such as those we are carrying on with the European Union.

[Lord Campbell of Pittenweem (LD)]

I regret to find myself in disagreement with the noble Lord, Lord Butler. I come back to the question of convention. No one can be in any doubt of the significance of the events that we are living through at the moment. Casting back in my memory, the only similar occasion I can think of is the decision to take military action against Saddam Hussein. On the eve of the debate in the House of Commons the noble and learned Lord, Lord Goldsmith, who I see in his place, answered a Written Question from—if my memory serves me right—the noble Baroness, Lady Ramsay of Cartvale, setting out the legal basis and justification for military action. Surely when the circumstances demand it, the convention can be dispensed with.

[Lord Keen of Elie]

With respect to the noble Lord, the circumstances in which the totality of the advice of the noble and learned Lord, Lord Goldsmith, came out were rather more complex than that, but let us address the immediate issue. What he was considering in that context was the lawfulness or unlawfulness of the action contemplated by the Government. That is not the position that pertains here.

[Baroness Bryan of Partick (Lab)]

My Lords, in 2012 in Scotland we faced a huge decision—perhaps not on the scale that we face now—but the then First Minister claimed that he had received legal advice from the Lord Advocate on the question of an independent Scotland’s relationship with the EU. He used the Ministerial Code to refuse to give details of that legal advice. Ruth Davidson, leader of the Conservative Party in Holyrood, said of this excuse that the,

“people of Scotland needed the truth”.

Does the Minister agree that a similar statement could be made on our behalf here today—that we should understand the nature of the advice provided?

[Lord Keen of Elie]

With respect to the noble Baroness, the then First Minister’s record on when he did and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.

[Lord Mackay of Clashfern (Con)]

My Lords, it has been the legal position for many years that when a legal adviser advises a client, that advice is confidential. It is not for me to criticise what went on earlier in the other place, but it seems to me that it had forgotten that the Attorney-General has an absolute duty to advise the House of Commons. It could have asked him to do so and answer any questions of law that it could think of putting to him. That is the correct way to deal with such a matter. Reference has been made to what happened in the past, which I believe was very much in accordance with that.

In my view, it is impossible as a matter of law for the legal adviser to say that he will publish legal advice which has been given to someone else in accordance with an obligation of confidentiality. So far as the Government and Parliament are concerned, that is no disadvantage, because they have the advantage that the Attorney-General is the adviser of the House of Commons—as he is the adviser of this House also. He is bound, in connection with that advice, to answer any questions that may be put to him on the relevant law. I cannot see any better system than that for reconciling the two fundamental problems about the position of a legal adviser.

The Attorney-General is responsible for keeping that confidentiality unless the client thinks the advice can be disclosed without any problem, but that depends on the nature of the arrangement. So far as I am concerned, by far the best arrangement is that the Attorney-General personally comes to the House of Commons and gives his advice, answering any questions that are required. That is what happened, as far as I understand it, today. There are enough problems with this Brexit business, which we are going to discuss over three short days in due course, without trying to complicate them with material about the conventions of the UK that, as far as I know, have lasted a long time and been extremely satisfactory.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to my noble and learned friend, and I entirely concur with his observations. As I sought to indicate earlier, as a law officer I am willing to take questions on matters of law that the House deems it appropriate to render to me, albeit I understand and appreciate that they may have better sources of legal advice than me. Some of your Lordships who are aware of the proceedings in the other place will know that the Attorney-General made a clear and unambiguous undertaking to Members of that House to fully, properly and clearly inform them on legal questions that they pose with regard to the withdrawal agreement, and he would do so with fidelity.

[Lord Kerr of Kinlochard (CB)]

My Lords, may I take the Minister back to his answer to the noble Lord, Lord Thomas of Gresford, who alluded to the statement in paragraph 158 of the explanation document published on 14 November? The Minister’s answer built quite a lot on “best endeavours”, which in diplomatic parlance is an oxymoron. The Attorney-General seems to me to have thrown a lot of very honest and clear light—in the memorandum, in his Statement and in what he said to the House after his Statement—on what is to me a desperately humiliating proposal.

If we were in the backstop, we would be observing the common external tariff and common commercial policy of the EU, policies in which we would have no say. The backstop makes clear that we would be informed about any changes in the tariff. We would be informed—not even consulted—about any changes in our external tariff. The potential longevity of the backstop is therefore quite an important issue. I thought the Attorney-General was very honest when he said it was a calculated gamble and he did not believe that we would be likely to be trapped in it for ever. In other words, he accepted the possibility that we might be trapped in it, wholly or in part, for ever. I myself would not wish to run that risk. The French have a saying, “Nothing lasts longer than the provisional”. Would the Minister like to try to give a more complete answer to the question from the noble Lord, Lord Thomas? I do not think “best endeavours” is quite enough.

[Lord Keen of Elie]

I thank the noble Lord for his observations. He goes some way towards explaining why we arrange for these agreements to be interpreted by lawyers, not diplomats. Of course entering into something such as the Northern Ireland protocol involves an element of political judgment; we have to accept that, and the Attorney-General was entirely candid about that. There is a political judgment to be made. There is in the agreement no express right of unilateral withdrawal, and we accept that as well. However, if one or other party decides not to obtemper their obligations, there are mechanisms to address that.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, I am sure the Minister will accept that this matter has major implications for Northern Ireland as an equal part of the UK and that the “best endeavours” that are spoken of today bring little comfort to us. So that we are not left to rely upon leaks from Cabinet papers, will the Minister confirm that the Attorney-General’s legal advice contains a warning on the use of the Irish backstop, in that it will continue unless and until a trade agreement between the UK and the EU supersedes it?

[Lord Keen of Elie]

I thank the noble Lord for his question but I am not in a position to say that the Attorney-General has or has not given legal advice on any issue to the Cabinet.

[Lord Goldsmith (Lab)]

My Lords, I do not intend to come back on the question of whether or not the Attorney-General’s advice should be disclosed; my views on the undesirability of that in the past are well known. I want to come on to the question of substance, which is important. The Minister has talked about the backstop and how it may be avoided. Could he confirm that the backstop will come in unless there is a concluded agreement? Could he confirm that, as the Statement by the right honourable Attorney-General says, it would continue in force,

“unless and until it was superseded by the intended subsequent agreement”?

That corresponds with the provisions of Article 1.4 of the protocol and indeed of the recital. Does the Minister agree that there are obstacles to avoiding that? He says you can use the “best endeavours” obligation. The right honourable Attorney-General said you can prove that only with “Clear and convincing evidence”. Does he agree with that? Does he also agree that simply finding a note dropped by President Macron saying “I don’t want to do a deal with the UK” will not satisfy that requirement?

Could the Minister please explain how the arbitrators have the power to impose a deal on the EU or the UK? It is one thing to say that someone is in breach of a provision; it is another entirely to impose on us and the EU an agreement that we have not reached. I go back to the words,

“until it was superseded by the intended subsequent agreement”.

I could find nothing in the 500-odd pages saying that the arbitral panel has the power to impose such an agreement. I see nothing that says anything other than that if the dispute is there, it can be passed to the arbitral tribunal. But how does the arbitral tribunal impose that, and why does the protocol state that it remains in force unless and until it is superseded by a subsequent agreement, rather than its saying unless and until it is superseded by a subsequent agreement or a decision of the arbitral tribunal?

[Lord Keen of Elie]

I thank the noble and learned Lord for his observations. His last comment is not the position under the agreement. It is not for the arbitral tribunal per se to simply impose an alternative agreement to the backstop, so let us clear that out of the way.

Let us look at the terms of the Northern Ireland protocol itself. If the backstop comes in, it will continue until superseded by an alternative agreement that the parties consider renders the existing backstop in the protocol no longer necessary. That is perfectly clear. It does not address the situation in which one or other of the parties simply fails to obtemper their legal obligations under the Northern Ireland protocol, including the obligation to use their best endeavours to arrive at a new arrangement in place of the existing backstop. In that event, the matter will ultimately go to the arbitral tribunal. Pursuant to Article 178, it has certain powers. It can impose financial penalties, just as the EU can impose financial penalties on a member that does not obtemper its obligations under EU law. The arbitral panel will have the power to impose financial obligations on parties who are in breach. If they do not then obtemper their obligations, it has the power to allow for the suspension of an obligation under the terms of the protocol.

These are temporary measures that would be taken to ensure that a party ultimately performs its obligations under the treaty. Failing that, there is the issue of Article 60 of the Vienna convention. However, I do not believe that anyone anticipates that we are going to go down that road. It is very clear that, for political reasons, it would not be in the interests of the EU, any more than those of the United Kingdom, to prolong the backstop in the Northern Ireland protocol any more than is absolutely necessary to maintain the integrity of the Good Friday agreement and the open border on the island of Ireland.

[Lord Howard of Lympne (Con)]

My Lords, the noble Baroness, Lady Chakrabarti, asked my noble friend whether he could identify any precedent for a country handing over such a wide range of vital issues affecting its national interest to a panel of arbitrators. Does he have an answer to that question?

[Lord Keen of Elie]

It is not uncommon for very material issues pertaining to the territorial integrity of a country to be put into the hands of a third party. I cite the recent case of Bolivia and Chile before the International Court of Justice, where judgment was delivered on 1 October this year, with regard to the failure to agree over the issue of access to the Pacific.

Brexit: Attorney-General’s Advice

Lord Keen of Elie Excerpts

Thursday 29th November 2018 Lords Chamber

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

My Lords, I will repeat the Statement in response to the Urgent Question:

“The Government recognise the legitimate desire of Members on all sides to understand the withdrawal agreement and its legal effect. That is why my right honourable friend the Chancellor of the Duchy of Lancaster confirmed to the House on Tuesday 13 November that the Government will publish a full, reasoned Statement setting out the Government’s position on the legal effect of the withdrawal agreement. This is in addition to the material the Government have already published; for example, a detailed explainer of the withdrawal agreement and a technical explanatory note on the Northern Ireland protocol. My right honourable and learned friend the Attorney-General will also make a Statement to the House on Monday 3 December about the legal effect of the agreement and will answer questions from Members”.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for that Statement, but with the greatest of respect, what have the Government to hide? The Motion passed in the other place the other week was completely unequivocal. It demanded the full and final advice provided by the Attorney-General to the Cabinet in relation to this deal which Parliament is being asked to approve. Surely it would be nothing short of contempt for Parliament not to disclose the full and final advice without delay.

[Lord Keen of Elie]

My Lords, the observations of the noble Baroness simply underline the prematurity of this Question. A Statement is going to be made by my right honourable and learned friend the Attorney-General on Monday. To anticipate the content of that Statement in the way proposed by the noble Baroness is wholly inappropriate. As regards the suggestion that the Government are hiding anything, perhaps I may quote the noble and learned Lord, Lord Goldsmith, who said that advice from the Law Officers is,

“covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted)”.

That explains why it is not appropriate for me to go further. However, to anticipate a Statement that has not yet been made is, I suggest, wholly inappropriate.

[Lord Bridges of Headley (Con)]

My Lords, given that we are so fortunate to have my noble and learned friend—

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in March 2003 the Government resisted publishing the Attorney-General’s full advice on the legality of the war in Iraq, publishing a summary only. That episode showed how misleading a summary can be and how such tactics discredit government. Will the promised full, reasoned Statement to which the noble and learned Lord referred amount to more than a summary, and will it be the work of the Attorney-General? Are the Government determined to repeat the mistake of 2003, and this time in defiance of a binding Motion on a humble Address requiring publication of the full advice? Do the Government have any proper basis for defying that Motion? The noble and learned Lord has not addressed that question. Is not the only possible inference that the Attorney-General has advised that the Prime Minister’s deal would tie the United Kingdom to the backstop unless and until the European Union agrees to its release?

[Lord Keen of Elie]

My Lords, again, the observations of the noble Lord merely underline the prematurity of the Question that is being posed. I think that noble Lords have to be realistic about this. No, we do not intend to repeat the mistakes of past Governments, nor will we. With regard to the advice over the Iraq War, I will not go into detail on that; it is a matter of history. The issue that was raised was whether the Cabinet had been shown the full legal advice or merely a summary, which, in the latter event, would have been contrary to the then Ministerial Code which indicated that when advice from the Law Officers was included in ministerial papers or in papers for the Cabinet, the full advice should be annexed to any summary. But that issue does not arise here at this time. Again, the whole Question that has been raised is one of prematurity. I am not going to comment on the issue of legal advice in a way that would intrude upon the Law Officer privilege.

[Lord Campbell-Savours (Lab)]

My Lords, does the Minister believe that there are circumstances in which the will of Parliament in a resolution should be ignored?

[Lord Keen of Elie]

I am not suggesting for a moment that the will of Parliament is going to be ignored.

[Lord Bridges of Headley]

My Lords, I apologise to the noble Lord, Lord Marks, for my earlier enthusiasm. My question is not precisely on this point; it is on a point that I raised yesterday which I believe has a very material impact on the decision that Parliament is about to take. In July last year, the European Commission said explicitly that, once triggered, Article 50 cannot be unilaterally reversed. Will the Government make it clear, before Parliament has a meaningful vote on whether to accept or reject the deal, whether they accept that point of view?

[Lord Keen of Elie]

My Lords, I spent an interesting day on Tuesday before 26 judges in the Court of Justice of the European Union, where this matter was addressed. I am advised that the Advocate-General to the court will deliver his opinion—of course, it is not an opinion binding upon the court itself—on 4 December.

[Baroness Hayman (CB)]

My Lords, I am sorry to intervene in a subject on which I am not expert, but it seems to me that the Minister is saying that there is nothing to worry about and we just have to wait until 3 December. Do I infer correctly from that that the Statement to be made on 3 December will fully comply in every detail with the resolution that was passed in the other place?

[Lord Keen of Elie]

My Lords, it is not for me to implore Members of this House not to worry in either the short or the long term, and it would be equally inappropriate for me to anticipate a Statement that has yet to be made by my right honourable and learned friend the Attorney-General.

[Baroness Ludford (LD)]

My Lords, can the Minister tell us whether the legal advice will take account of the interesting additional sentence in Monday’s Statement that opened up the prospect of there being a trade relationship but, if that were later altered by a future Parliament, the Irish backstop not coming back? What would be the legal implications of that for the European Union’s understanding that we will respect the Good Friday agreement and not bring back a hard border in Ireland—that is, we could chop and change whatever happens initially in the permanent relationship?

[Lord Keen of Elie]

I am not going to anticipate a Statement that has not yet been made. With regard to the interpretation and application of the withdrawal agreement, this is not the time or the place to indulge in a detailed analysis of its effect. However, the withdrawal agreement is in the public domain, and it is open to anyone and all to take appropriate legal advice if they consider that that is required with regard to the interpretation of that agreement.

[Lord Goldsmith (Lab)]

My Lords, I apologise to the noble and learned Lord for intervening. As he said that he would not anticipate what is to come, I thought that he was going to stop.

Given the references to things that I have said in the past, I thought that I should intervene for a couple of moments. First, I do not agree with or accept the characterisations that have been made in relation to what happened in 2003, but that is for another day. Of course, all the advice given on Iraq was disclosed in the Chilcot inquiry and looked at in great detail. It is important to recognise that. Secondly, I want to press the noble and learned Lord on the point that he has not really dealt with. In 2003, no resolution or humble Address was ever made by the House of Commons to the Government; they could have released whatever they wanted at any time. I am interested to know what the Minister has to say about the effect of the Commons resolution.

[Lord Keen of Elie]

There has been a resolution in the House of Commons. We are aware of its terms and its scope. We will await the Statement from the Attorney-General to see to what extent it is considered by the House of Commons to meet the resolution that was made.

[Lord Beecham (Lab)]

My Lords, as I understand the noble and learned Lord, the Attorney-General’s report, whatever form it takes, will be published only the day before the debate. Why is it being left to that late date?

--- Later in debate ---

[Lord Keen of Elie]

I do not believe that it is being left at all. It is a question of timing and the availability of the Attorney-General to provide any report and to address the House on Monday regarding these issues. Again, I emphasise the prematurity of the present questions. If noble Lords have an issue arising in the light of the Statement clearly we will respond to that.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I fully respect the position the Minister is in, but he is not being asked to divulge anything about the content of the Statement that might be put before the House of Commons on Monday. He was asked, for example in the question from the noble Baroness, Lady Hayman, about the intention behind that Statement. If he is not able to say that it is his right honourable friend the Attorney-General’s intention to meet the requirement of the Motion passed in the House of Commons, that is quite a serious matter.

[Lord Keen of Elie]

I quite understand the noble Baroness’s observations, but let me be clear that my right honourable and learned friend the Attorney-General is aware of the Motion made in the House of Commons and will be conscious of it when he comes to address that House.

Brexit: Negotiations

Lord Keen of Elie Excerpts

Tuesday 20th November 2018 Lords Chamber

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

My Lords, this has been an extensive and interesting debate. I remind noble Lords that it is a debate on the Statement made by the Prime Minister relating to European Union exit, although it has ranged much more widely than that, as we have noticed. In the time available, I will endeavour to address the points raised by noble Lords, but I hope they will forgive me if I do not manage to address each and every point raised by the, I think, 56 speakers we have had so far.

It is clear that we have made a decisive step forward. We have agreed in principle the terms of the United Kingdom’s exit from the European Union, as set out in the withdrawal agreement—or, in the words of the noble Baroness, Lady Hayter, a smooth and orderly exit. We have also agreed the broad terms of our future relationship, as set out in the outline political declaration. It is just that. It is no more than a political declaration at this stage, but that process is not complete and the Prime Minister will be meeting Mr Juncker in the next few days to take that further forward.

[Lord Wallace of Saltaire]

My Lords—

[Lord Keen of Elie]

No, I am not taking interventions because of the time available. I am sorry.

All this puts us close to a Brexit deal—a deal that takes back control of our borders, our laws and our money, while at the same time seeking to protect jobs, security and, indeed, the integrity of the United Kingdom. It is a deal that brings the country together—a deal that realises the benefits of Brexit and then lets us focus on other issues.

Let me touch upon several points that have been raised during the debate. There was the question of citizens’ rights. What we intend to do there is to protect the rights of the more than 3 million EU citizens living in the United Kingdom and about 1 million UK nationals living in the EU. In respect of that we intend to bring forward an immigration Bill, which will be the subject of consideration.

The question of students was raised by the noble Baroness, Lady Smith of Newnham. We have clearly taken a position with regard to EU students in this country, and it is our belief that in due course, in the course of negotiation, we will achieve a reciprocal undertaking from the EU 27 but that has not yet been achieved.

There is the implementation period, which provides a bridge to the future relationship and will allow businesses to continue trading as now until the end of 2020. There is also the financial settlement—a fair financial settlement for UK taxpayers, which is estimated at between £35 billion and £39 billion. Let me be clear in response to my noble friends Lord Forsyth and Lord True: that is not a price. As was pointed out by the noble Lord, Lord Butler, it is an estimate of a determination of our outstanding obligations on a net basis. There are sums that will fall due during the implementation period; there are sums that we have committed to meet in respect of obligations of the EU; indeed, there will be sums coming back from the EU over time, including from the European Investment Bank and the European Central Bank.

[Lord Forsyth of Drumlean]

Will my noble and learned friend—

[Lord Keen of Elie]

No, I am not going to take interventions.

[Lord Forsyth of Drumlean]

You have 25 minutes. The point I made in my speech about the price was that we would be in a transition period or implementation period, although there seems little to implement, and in that period we would have no say in our affairs yet were still expected to pay the £10 billion per year. If we did not have that period, then we would not pay the £20 billion.

--- Later in debate ---

[Lord Keen of Elie]

Let us be clear: if during this implementation period—this transition or time-limited period—we are to have the continuing benefits of membership of the single market and the customs union, and of the other institutions during that two-year period, then there is a price to be paid. In addition, EU obligations have been incurred—for example, those in respect of Turkey. Having undertaken those obligations we will, as a matter of international law, meet them. I reiterate: it is not a price but a matter of discharging our obligations.

With regard to Northern Ireland, as part of our solution to ensure that no hard border between Northern Ireland and Ireland emerges, in the unlikely event that more time is needed to finalise the future relationship, there are two options: the implementation period could be extended for a limited time, or we could bring in the backstop. The backstop as now agreed replaces the EU’s proposal for a Northern Ireland-only customs “backstop to the backstop” with a UK-wide solution, respecting the constitutional and economic integrity of the United Kingdom.

The withdrawal agreement legally commits both sides to use best endeavours to ensure that the backstop is never used. If either side fails to do so, this could be referred to an independent arbitration panel. I stress that it is an independent arbitration panel; it will comprise five members, two selected by the United Kingdom, two selected by the EU and a fifth, wholly independent arbitrator, selected by those parties, to resolve any dispute in that regard.

I would also observe, and I will come back to this in the light of a question from the noble and learned Lord, Lord Goldsmith, that as he observed, the use of the term “best endeavours” gives rise to an obligation. It may be regarded as a good faith obligation, but it is an enforceable obligation. It may be breached, and it may be determined by an arbitration panel. That mechanism is, as I believe the noble Lord, Lord Anderson of Ipswich, observed, a fair means of seeking to resolve disputes with regard to the backstop.

I turn to some of the observations that have been made during the course of the debate and the questions raised. The noble Baroness, Lady Hayter of Kentish Town, said that no one believes that the agreement will get a majority in the Commons. With great respect, the noble Lord, Lord Desai, either as a realistic optimist or a realistic pessimist, observed that he anticipated that it will pass. Of course, much of that lies in the hands of the Labour Party in the House of Commons. If the Labour Party wishes to avoid a no-deal Brexit, it has the means to do that by being prepared to see this final agreement on withdrawal pass through the Commons, so the answer lies in the hands of Labour as much as it does in the hands of any other party in the House of Commons.

As regards the suggestion of further negotiation that the noble Baroness referred to, that, as my noble friend Lady Altmann observed, is fantasy. It is not going to occur and indeed, I believe my noble friend Lord Cormack made the same observation.

With regard to the future relationship, it cannot at this stage be taken beyond a political commitment. The EU 27 are not, prior to our leaving the institution of the European Union on 29 March 2019, in a position to conclude an agreement with regard to the future relationship, so what we have is a statement of political intent, a political statement or undertaking. The noble Baroness said that this is a political statement without guarantees. Of course, that is a truism because political statements do not come with guarantees. That is why they are called political statements. That is where we are at present as we take that matter forward.

I think it is fair to say that the noble Baroness, Lady Ludford, did not have a good word to say about anyone on this side of the House, but it seemed to me that she fundamentally confused the objective of the withdrawal agreement with the issue of our future relationship. At present, we are concerned with the withdrawal agreement, not with the final determination of the future relationship.

The noble Lord, Lord Dykes, began by saying very candidly that we should not leave and then he suggested that we should have what a number of noble Lords referred to as a people’s vote, which is another term for a second referendum. He said that the remain option should be an option in that second referendum. I remind the noble Lord that the remain option was an option in the last referendum.

The noble Lord, Lord Morrow, addressed issues with regard to Northern Ireland. Clearly there are sensitive issues here. He suggested that we should leave the EU in the same way that we joined. There has been a span of 45 years since we joined the EU, and a great deal has happened in both the politics and the economics of the island of Ireland in that 45-year period. I do not accept the suggestion that Northern Ireland is somehow going to be subservient. It will be subject to those elements required to maintain the open border in Ireland. I do not believe that anyone would wish to see that open border threatened. In my submission, it does not indicate, as he suggested, that Dublin or Brussels holds a veto on the backstop. The backstop is one of two alternatives, and the backstop itself is subject to the dispute resolution process in the withdrawal agreement, subject to the obligation of best endeavours. I again emphasise the use of term obligation in respect of best endeavours. My noble friend Lord King of Bridgwater pointed out, and I entirely concur, that a second referendum is not a realistic prospect. It simply does not engage with our democratic process.

[A noble Lord]

What does that mean?

[Lord Keen of Elie]

I must say I am a Burkean as far as representative democracy is concerned. That is how our constitution operates. There are exceptions so far as referenda are concerned.

[Baroness Hayter of Kentish Town]

Your party had the first one.

[Lord Keen of Elie]

It is suggested that my party had the first one. I believe Harold Wilson had a referendum over the EU rather before my party, but I may be mistaken about that. I am obliged to the noble Baroness.

It is said by the noble Lord, Lord Reid of Cardowan, that we have arrived at an impasse. We have not. We have arrived at an agreement, and it is one that will go before the House of Commons in the near future.

The noble Lord, Lord Steel of Aikwood, talked about crashing out without a deal, and we have had references to car crashes and catastrophes. Such arguments are not improved by overstatement. That, with respect, is what has been happening, perhaps at both ends of the spectrum, with regard to the debate on this matter and it takes away from the factual issue. It plays into what the noble and learned Lord, Lord Goldsmith, referred to as the “storytelling” that can sometimes fog proper decision-making in this context.

The noble Lord, Lord Steel, also referred to “a defective deal, at great expense”. Again I remind him that the sum of £35 billion to £38 billion is not a great expense; it is a negotiated means of meeting our outstanding obligations under international law, and that is what we intend to do.

The noble Lord, Lord Browne of Belmont, also raised the question of Northern Ireland. Again I emphasise that the issue of the backstop, even if it comes into play, will be subject to the obligations of “best endeavours” and to the independent arbitration process provided for in the withdrawal agreement. I also note that there is no limitation at all upon the movement of goods from Northern Ireland to the remainder of Great Britain. That movement remains wholly unimpeded by these terms.

My noble friend Lord Bridges of Headley referred to the political declaration. Of course, as he later observed, it is not yet complete, which is why we must wait to see the outcome of further discussions regarding the political declaration in order to see where we are going to be. It is certainly not the time to anticipate what that outcome might be.

[Lord Bridges of Headley]

My Lords, I understand that it is premature, but could my noble friend therefore refute the proposition put forward by the EU’s deputy negotiator that the political declaration means that the customs union will be the basis of the relationship?

[Lord Keen of Elie]

The withdrawal agreement has expressed the terms for the implementation period and the present political declaration has indicated where negotiations will begin, but where they will end is a wholly different matter. It is a case of saying that it is a work in progress and we will have to await the outcome of that further negotiation.

[Lord Wallace of Saltaire]

My Lords, the document that we had from the Government to say where we are now said the negotiations on the political statement would be finished by the end of November, which is the end of next week. Can he confirm whether that is expected to be the case and when it may come to Parliament for us to debate, or is he saying that it will be much longer delayed?

[Lord Keen of Elie]

My understanding, as I said before, is that the Prime Minister is going to be meeting with Mr Juncker in the very foreseeable future and that the discussions are going to be taken forward. As to when the final political statement will be concluded, I cannot give a specific date but the intention is, as previously stated, that it should be available by the end of November. I cannot say when it will come before Parliament; at this stage I cannot give a definitive date from the Dispatch Box, but I am quite willing to write to the noble Lord if I have any further information on that point.

The noble Lord, Lord Kerr of Kinlochard, mentioned Article 50 and has previously observed that he had a hand in its drafting. As a general rule of law, one does not submit subjective evidence over the construction of a contractual provision, and there are very good and compelling reasons for that. However, I note what he has to say about the idea of the EU 27 being prepared to stop the clock. With great respect, it appears to me that the indication is: “Let us get on with it. Let us go forward. We have an agreement for withdrawal. Let us implement that. Let us then address how you are going to leave”—because we are going to leave the European Union on 29 March 2019.

The noble Lord, Lord McCrea of Magherafelt and Cookstown, made his maiden speech today. I thank him for that and compliment him on his contribution to the debate. It was suggested that he should not have used a maiden speech to be controversial, but I would not take issue on that. It is a matter of deep concern to the noble Lord and his fellow Peers from Northern Ireland that we should address the matter of the border and the integrity of the union in this context, and I fully understand his concerns, but I cannot accept that Northern Ireland is either a hostage or a sacrifice in the circumstances. Far from it: our concerns lie in maintaining the union. In so far as he suggested that a hard border was a fictitious idea and could be managed, I do not disagree with him. That is one reason why we anticipate that the backstop will not be required. But, as it is, the people of the United Kingdom of Great Britain and Northern Ireland have spoken as a United Kingdom, and their decision is that we should leave the European Union.

The noble Lord, Lord Carlile of Berriew, pointed out that the role of Parliament must be remembered. Like him, perhaps, I am a Burkean on the issue of representative democracy. He said, and I agree, that there should be no running back to the people. It is for Parliament to consider the present withdrawal agreement. It is for Parliament to accept or reject that withdrawal agreement. It is for Parliament to address the consequences of its actions, and it answers to the people in a representative democracy. I agree with much of what he said about the process that we should be going through in this context.

[Lord Carlile of Berriew]

I am very grateful to the noble and learned Lord for giving way, but on that point, dredging up his experience of representative democracy, does he agree that when a Government put forward a proposition in the House of Commons and it is defeated, the normal course is to revert to the status quo ante?

[Lord Keen of Elie]

That might be the normal course, but it is not the invariable course. We have to look forward to how the Government will proceed in the context of the present process, where they present their agreement to the House of Commons, where it will be subject to consideration. I shall not anticipate that outcome, although, like the noble Lord, Lord Desai, I take the view that there is every prospect that the House of Commons, having examined this agreement —I am amazed at how many people commented on it before they could conceivably have read its 580 pages—will find that it takes us forward towards the goal that we were set as a result of the referendum.

[Lord Hannay of Chiswick]

As the noble and learned Lord seems to be drawing to the end of his remarks and has not yet answered my question, I wondered whether he would have a shot at it now. I asked how he would construe the provision that the arbitration panel may not rule on a matter which involves the interpretation of EU law, but must pass it to the European Court of Justice.

The whole of the withdrawal treaty will become European Union law on the day it is ratified. It is no good the noble and learned Lord shaking his head. In its view, it will become European Union law. There will be binding obligations under European Union law. Irrespective of that, how does he construe that provision?

[Lord Keen of Elie]

I am obliged to the noble Lord for reminding me of his question. Under the provisions of the withdrawal agreement, if there is a question as to the interpretation of a point of EU law, the interpretation must be given by the arbitration panel to the Court of Justice of the European Union, which will determine that point. The application of that interpretation of European law will be a matter for the arbitration panel, not the court. That is why we have an independent arbitration panel and it is why I took issue with the way in which the noble Lord sought to characterise the matter. At the end of the day, the issues that the arbitration panel will be addressing will, no doubt, involve mixed questions of fact and law. The panel will be masters of the fact, apply the law and make a determination on that mixed basis.

I am told that I have three minutes left. That being so—I know that noble Lords would want me to have another 30 minutes—I will quickly go through some of the issues which were touched upon but which I have not yet addressed. Many noble Lords talked about a people’s referendum. I hope that I have made the point that that simply does not accord with our democratic principles, nor does it reflect the will of the people when they voted in the referendum. I was quite taken by the observation of the noble Lord, Lord Warner. He said that only 38% of the electorate voted to leave. That is 17.4 million people and, under our democratic traditions, is what we call a majority.

[Lord Warner]

Does the Minister accept that the proportion of the electorate that voted to leave, 38%, is less than the requirement for 40% of an electorate to call a strike in many public services?

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[Lord Keen of Elie]

My Lords, we are not talking about a strike in public services. Whether the figure is 38% or not, it represents a majority and that is where we are.

The noble Baroness, Lady Bull, raised a series of questions about citizens’ rights. I quite understand her concern, particularly in the context of educational institutions. We are bringing forward an immigration Bill. Once that has been brought forward and laid, we will be in a position to address comment and criticism with regard to its terms.

[Lord Goldsmith]

When will it be brought forward?

[Lord Keen of Elie]

I understand that it will be in the new year.

[Noble Lords]

Oh!

[Lord Keen of Elie]

Every year is a new year.

The noble Lord, Lord Judd, made the prescient point that the political declaration is vital and that until we have that declaration we will not have a clear picture of where we are going to be with our future relationship. This is a staged process. We have the withdrawal agreement in draft; we are capable of taking that forward. We are capable of having a Brexit that works for both the EU 27 and ourselves. We will have an implementation period and we will then have the opportunity to lay out the precise terms of our future relationship with the EU 27.

The noble Lord, Lord Anderson of Ipswich, talked about an extension of the Article 50 process. It is not the policy of this Government that the Article 50 process should be interrupted. Notice has been given; the date of exit is determined; we will follow that through to a conclusion. The noble Lord, Lord Inglewood, raised a number of issues relating to Written Questions. I do not have the answer, but I will arrange for a letter to be written and will put a copy in the Library. I do not know what the present status of various Questions to that department is.

Finally, the noble Lord, Lord Dobbs, referred to a deliberate act of punishment on the part of the EU. I cannot accept that. The EU 27 are negotiating in the best interests of the EU 27. We are negotiating in the interests of the entire United Kingdom. It is going to be a demanding negotiation but, at the end of the day, we will have an ongoing, civilised and mutually beneficial relationship with the EU 27 after we have left.

I am obliged to noble Lords for their attention.

Motion agreed.