Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Monday 25th March 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019.

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

My Lords, as before, this instrument forms part of the Government’s ongoing work to ensure that there are functioning domestic laws in the event that the United Kingdom leaves the European Union without a future deal on civil judicial co-operation. Of course, as I have indicated before, the Government’s priority is to secure that we leave the European Union with an agreement that will address these matters. This instrument relates solely to the situation in which we have to accommodate no-deal exit preparations. In the event that we enter an agreement and there is an implementation period, the coming into force of this instrument will be deferred until the end of that implementation period. Of course, its terms and applicability would be considered in the light of any future agreement secured during the implementation period.

The instrument relates to the existing European Union rules that determine which country’s laws apply when citizens have cross-border obligations, such as when they are buying or selling goods and services. They apply to both contractual and non-contractual matters. An example of a cross-border contractual matter would be a contract for the sale of goods by a company in France to a company in England. An example of a non-contractual matter would be the duty of care owed by a party in one EU country to a client based in another—for example, not to give negligent advice that causes financial loss. The rules are known as applicable law or conflict of law rules, and are entirely separate and distinct from the jurisdiction rules that determine which country’s courts should hear a cross-border dispute. They are an important part of the EU civil judicial co-operation framework and they enhance legal certainty, which in turn underpins trade and commerce between member states—and, indeed, between member states and the rest of the world.

The EU applicable law rules are currently found in two main instruments: the Rome I and Rome II regulations. The Rome I regulation on the law applicable to contractual obligations is a directly applicable EU regulation. It applies to contracts formed on and after 17 December 2009. It is the current law in all EU member states other than Denmark, which opted out of this regulation. I should note that the Rome I regulation was preceded by the 1980 Rome Convention on the Law Applicable to Contractual Obligations, a treaty to which the UK and a number of now-EU member states are still contracting parties. That treaty came into force in the United Kingdom on 1 April 1991 and was implemented through the Contracts (Applicable Law) Act 1990. It continues to apply to any contracts entered into between April 1991 and 16 December 2009. Of course, such contracts might conceivably still be in force today; also, it still applies to contracts with Denmark because it opted out of the subsequent regulation. The Rome II regulation on the law applicable to non-contractual obligations is also a directly applicable EU regulation. It commenced on 11 January 2009 and, like Rome I, is the law in all EU member states other than Denmark.

If I may, I will refer simply to the “Rome rules” in addressing this matter. In each case, the Rome rules start from the premise that parties subject at least to certain limitations are entitled to choose the country’s law that applies to their contractual or non-contractual obligations. They operate so that, provided that the requirements of the rules are complied with, their choice of law is valid, will be respected by the courts of a participating EU member state and will be applied to determine any dispute. Where the parties have not chosen a country’s law, the Rome rules lay down a set of default rules to enable parties and the courts to determine which country’s laws will apply.

There are both general and specific default rules. For contractual matters, the general default rule in Rome I is that the applicable law should be the law of the country with which the contract is most closely connected. For non-contractual matters under Rome II, it is the law of the country in which the damage occurs. In addition, special rules apply to particular types of contractual and non-contractual matters. For example, Rome I contains rules specific to insurance contracts, consumer contracts and employment contracts, while Rome II contains rules specific to product liability, unfair competition and environmental damage.

Although part of the EU civil judicial co-operation framework, the Rome rules differ from the other EU rules in that framework in one important respect. The Rome rules do not, for the most part, rely on reciprocity to operate effectively between member states. Participating EU member state courts must apply the applicable law determined by the rules, irrespective of whether that law is the law of an EU member state or a non-EU country. For example, if you are in France, the French courts are obliged to apply those rules even though your choice of law may be Russian, American or that of any other state outwith the EU. That is essentially why we are able to retain these rules in domestic law going forward.

This statutory instrument implements the Rome rules in the event that we leave without a deal by retaining the rules as domestic law, post exit. Of course, a benefit of that is ensuring that UK citizens, businesses and consumers continue to have clear and workable rules on which law applies to cross-border situations they may find themselves in. Consequently, when we leave the EU and in the event that we do so without a deal, the Rome I and II regulations will effectively be retained as domestic law; under the provisions of the withdrawal Act 2018, they will become retained European law.

However, certain amendments are required because there will be some differences in how the Rome rules are applied by courts in the United Kingdom and those in EU member states, post exit. Due to the way in which the EU rules are constructed, EU member states may treat UK cases slightly differently in some specific instances, for example where Rome I and II refer specifically to member states or the European community. We will have to accommodate that when we bring the matter into domestic law; we have therefore amended these references. Our status as a contracting party will alter but we will have those rules in our domestic law as retained European law.

However, the position regarding the Rome convention —the earlier convention—is different because our status as a contracting party to it will terminate as a matter of international law once the UK has left the EU. The convention will no longer be binding on the United Kingdom. The approach taken in this instrument is that the substantive rules of the convention will continue and are brought into domestic law but, as I noted before, they apply only to contracts entered into up to 16 December 2009 and in respect of Denmark. One change to the convention provisions will be that UK courts will no longer be in a position under the convention rules to refer questions of interpretation of the 1980 Rome convention to the Court of Justice of the European Union.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, in an attempt once more to be succinct, I can echo the point that the noble Lord, Lord Thomas, was making. The concerns from this side are essentially about regulatory diversion. I do not think anybody is going to object to these regulations; the concern is with ongoing regulatory divergence and its potential impact, whether it is on unfair competition cases or IP cases and so on. Perhaps the Minister might consider briefly that risk of regulatory divergence in his reply.

In relation to insurance, the Explanatory Memorandum says:

“The Government engaged with representatives of the insurance industry”,


in relation to “insurance risks”. Can the Minister outline the types of risks identified in that engagement? We are told that banks and insurers are shifting hundreds of billions of pounds in assets out of the UK ahead of exit day to keep their contracts and policies within the EU area. We have learned that Aviva, Britain’s second largest insurer, will transfer around £9 billion in assets to a new Irish company, for example. Does the Minister agree with having that sort of risk to our economy? Does this reflect the concern about different outcomes that could result from insurance contract cases being resolved differently in our courts and those of our EU partners in the future?

As I say, my general proposition is on the risks of regulatory divergence, but one can hardly object to the instrument itself.

[Lord Keen of Elie]

I am obliged to the noble Lord and to the noble Baroness for their observations. As the noble Lord, Lord Thomas, observed, there will no longer be scope for a reference to the Court of Justice of the European Union over the construction or interpretation of the convention. Given that the convention has been there since 1980, that may already have happened but we cannot say that it would never have happened again. But I say to the noble Lord—and I address this to the noble Baroness, Lady Chakrabarti as well—that, although there is no longer a basis for a reference by a UK court to the Court of Justice, the UK courts may of course have regard to the decisions of the Court of Justice going forward. Quite sensibly, they would have regard to decisions that bore upon the interpretation of the convention, or of Rome I and II as well. That would be of relevance to the incorporation in domestic law of provisions which had their genesis in those European Union provisions.

The immediate matter of insurance is quite narrow and concerns one of the limited derogations from the freedom to choose your own law, as it were. There is a limitation about choice of law where an insurance contract contains provision to cover risks located in the European Union. Essentially, there cannot be an insurance contract that covers risks in an EU member state where the law of Russia is chosen as the relevant law for resolving the contract. The difficulty faced in drafting these regulations was that the reference under the derogation was to a risk in an EU member state. We were going to be concerned not only with a risk in an EU member state but with a risk in the United Kingdom. This is why we have had to move from reference to “member state” to “relevant state”, which is, in turn, defined by reference to member states and the United Kingdom. It is a fairly narrow move, which I do not believe is, of itself, going to impact on the choice or application of law with regard to the type of contract to any material extent. I do not see how it would impact on the transfer of assets such as was referred to by the noble Baroness, Lady Chakrabarti. This is not what this regulation is addressing.

I acknowledge that, if we leave the European Union without a deal—which is not this Government’s preferred option—there will be issues for banks, insurance companies and others with regard to their future arrangements in the European Union. No one would take away from that. That said, this is essentially implementing an existing scheme with just those changes necessary to make sure it operates in domestic law. I do not believe this is going to take away from the attractiveness of English law—or, indeed, Scots law—as a system for the resolution of commercial disputes. English law in particular remains the lingua franca for charter parties, major commercial contracts and so on. Because of the flexibility of common law, it will continue to be used for this reason. I do not see that this is going to result in any major change. No doubt there are options when it comes to choosing a common law system—such as the law of Hong Kong, Singapore or New York, for example. That already exists and we deal with it.

Noting all the observations that have been made, I beg to move.

Motion agreed.

Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Monday 25th March 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019.

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

My Lords, these regulations form part of the Government’s ongoing work to ensure that there are functioning domestic laws in the event that the United Kingdom leaves the European Union without a deal. They relate solely to the Government’s no-deal exit preparations. Should Parliament approve the withdrawal agreement, which incorporates an implementation period, and pass the legislation necessary to implement that agreement, the commencement of these regulations would be deferred until completion of the implementation period.

The regulations amend or revoke legislation relating to five EU measures; first, the victims of crime compensation directive. That directive established that each EU member state should have a national scheme to provide compensation to victims of violent intentional crime. It also provided for liaison between the relevant authorities of each member state to facilitate the compensation of victims. The Criminal Injuries Compensation Authority manages the compensation scheme for England, Wales and Scotland. Northern Ireland has a separate scheme; however, the Criminal Injuries Compensation Authority is the assisting authority for the whole of the United Kingdom and liaises with other member states to help victims apply for compensation from them.

The second matter is the European protection orders. The directive provides a framework to allow certain kinds of protection order made in criminal proceedings in one member state to be transferred to another EU member state where it can be recognised and enforced.

Thirdly, there are the European supervision orders. These enable the transfer of certain supervision measures between EU member states. For example, bail granted subject to conditions issued in criminal proceedings in one member state can be transferred to another EU member state to be recognised and supervised there.

Fourthly, the mutual recognition of financial penalties provided a framework so that certain financial penalties imposed in criminal proceedings in one member state can be forwarded to another EU member state for enforcement.

Fifthly and finally is the matter of taking account of convictions in EU member states in the course of new criminal proceedings in the United Kingdom. This requires known prior convictions in another EU member state to be taken into account—for example, when passing sentence—to the extent that national law requires national convictions to be taken into account. This means that, upon sentencing, the court in any member state can treat convictions from another member state exactly as they would domestic convictions.

The purpose of this instrument is to address the changes necessary in domestic law upon our exit, in the event that we exit without a deal. I will not go into the detail of what the SI does for each EU measure or tool—I hope that the regulations themselves, the Explanatory Memorandum and the provisional impact assessment are already clear on that—but I will briefly draw attention to the main points and to what occurs in the event that we leave without a deal.

For the victims of crime compensation directive, the instrument will revoke the implementing legislation relating to mutual assistance since it provides a system of intra-EU member state co-operation that will not be present in a no-deal scenario. I emphasise that the regulations do not impact on our national compensation scheme; that will continue.

For the European protection order directive, the instrument will revoke the implementing legislation since the scheme can operate only between EU member states, and in this scenario the United Kingdom will not be one. We take the opportunity of these regulations to make transitional provision to ensure that any order made consequent to an incoming request received prior to exit will continue to be enforceable until its conclusion, whenever that is, so that persons will remain protected. I should add that this system is seldom used. My understanding is that only four orders have been made by the courts of England and Wales in respect of such protection orders since it came into operation, while only six applications have been received from EU member states. That is over a period of three years.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

My Lords, in all sorts of matters, particularly perhaps in matters Brexit, it is not as fashionable as we might like either to be succinct or fair to one’s opponents. So as not to exacerbate the Alice in Wonderland world described by noble Lords, I would say that the Minister is in an unenviable situation. Surely we all know that the problems are not with this draft instrument but with any possibility of exiting the European Union without a deal. It would be a disaster in all sorts of areas—trade and other aspects of co-operation—but in the context of criminal justice co-operation, we all ought to acknowledge that the idea of no deal is particularly disastrous and dangerous for people in this country and in the European Union, especially for victims of violent crime and survivors of domestic abuse.

Having said that at the outset, I invite the noble and learned Lord the Minister to agree and to do his best with particular questions about the various areas of policy and co-operation covered here. We acknowledge that it is not about the instrument. We are in an unenviable position. The clock is ticking down and we seem to be no closer to a final scheme for what criminal justice co-operation will be. The problem is that the political declaration is vague on matters of security and justice co-operation. As we have heard from noble Lords, access to Europol and European criminal records is essential, as is access to the extensive database system. Perhaps we can all agree on this. I am sure that, in due course, the Minister will do so as well and he will suggest that this instrument and its provisions are not an ideal alternative to having a proper scheme for co-operation after Brexit.

If the Minister is able to do so, I wonder if he might discuss what the total cost to the UK authorities might be from not having, for example, access to the system of formal communication in relation to compensation for victims of violent crime. The Explanatory Memorandum makes a lot of store about the total number of requests in each relevant case. Can he assist on the total amount of compensation that has resulted in the past three years in relation to this request? Thare might give more of a sense of the importance and severity of the matters we are dealing with.

In relation to European protection orders, paragraph 7.3 of the Explanatory Memorandum states,

“the UK will no longer be able to issue requests to other EU Member States and expect them to be acted upon”.

This is predominantly about domestic violence. Can the Minister confirm that this change could make life less safe for the survivors of domestic abuse after exit day? Could the Minister perhaps articulate how travel restrictions would be placed on the perpetrators of domestic abuse in such a scenario—for example, on a man who is an EU citizen with a woman victim who is a UK citizen—without an EPO? Similarly, on financial penalties, does the Minister have any idea what the potential cost would be to the UK authorities for losing access to the framework?

In all this, I am making the point that it is not really fair to impugn the instrument itself but, as there are people beyond this Room who are still advocating a no-deal Brexit, it is none the less important to try to get the Minister’s thoughts on some of these matters.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. I begin by observing that my noble friend Lord Deben has misunderstood the purpose of these regulations. They are not concerned with the transfer of data or information or with access to it; they are concerned with what the courts do with it once they have it. I will elaborate on that in a moment.

In light of the observations that have been made, particularly by the noble Lords, Lord Thomas and Lord Thomas—this is a bit like a rugby commentary featuring Joneses, but I will not go there—and the noble Baroness, Lady Chakrabarti, I shall take each of the five relevant regulations’ directives in turn, pick up each of the points that have been raised and then come back to the issue of data and how that is being addressed.

The first is the victims of crime compensation directive. Let us be clear: in the event of a no-deal exit—I am not seeking or advocating that; I am dealing with the situation that arises in that eventuality, as the noble Baroness observed—any EU citizen who is the victim of a violent crime in the UK will still be able to proceed to make an application under the UK scheme in respect of a violent criminal act in the UK. Conversely, even though we no longer have the relevant directive in place, where a UK citizen suffers such an act in a member state that has ratified the European Convention on the Compensation of Victims of Violent Crimes, which is the preceding European Council convention, they will also be able to access compensation, and there are 18 EU members that are signatories to that convention. In addition, there are some member states that are not signatories to the convention but whose criminal compensation schemes admit of applications just like the UK’s for any citizen who suffers that violent criminal conduct within their country. There are at least two which fall into that category; I believe that they are Ireland and Latvia. There are in fact a total of 20 existing EU member states where it will be possible to continue applying for compensation under these schemes.

To follow up the point from the noble Lord, Lord Thomas of Gresford, the intention is that the CICA will support victims in accessing compensation from those countries where an application can be made—in other words, it will do essentially what it does at present, which is to assist the victim in directing how and where the application should be made in the circumstances. I readily accept that that is not a complete answer to the existing scheme; it is deficient to the extent that at least seven existing EU member states will not facilitate such an application. That said, it is important to put this into context. As the noble Lord, Lord Thomas, observed, not every application has been notified to the CICA in the UK. In so far as it is notified, though, we are aware that in the past year, 2017-2018 to the end of February, there were 59 requests for assistance, 29 notified unsuccessful applications and only two notified successful applications. I readily accede that not all those who made an application notified that fact and not all those who made a successful application notified that, so the data is limited. As a consequence we do not know the sums that were awarded in these cases because there is no requirement for notification. It is a limited compass and what will be in its place is not as good as what exists at present. Nobody is pretending otherwise, but it is appropriate that we put the statute book into proper form in order that people are not confused when they come to determine what their rights are in this context.

Turning to the European protection order and the point raised by the noble Baroness, Lady Chakrabarti, it is simply not possible to operate that scheme if we leave without a deal because under the terms of the relevant provision only the court of a member state can make a request and under the scheme it can make a request only to the court of another EU member state. In the event that we receive an application before exit, we will process it because it will have been competently made by the other member state and we will be receiving it at a time when we are a member state, but after exit we cannot make such orders because they will not be accepted as competent by the EU 27 states, and we cannot expect to receive any because they cannot competently make such a request of the United Kingdom once it ceases to be a member state. To put this into context, I should emphasise that this order is very rarely used. Four EPOs have been issued by the English and Welsh courts and the Northern Ireland authorities since this provision was implemented in 2015, and only two of those were recognised by the receiving EU state over a period of four years. In the same period, six EPOs were received by the courts from other member states of which four were recognised and two were declined, so we are talking about tiny numbers in this context.

On the European supervision order, I would, with respect, seek to correct the noble Lord, Lord Thomas of Gresford. The supervision order is directed to pre-criminal trial matters such as bail. It does not apply to any post-criminal trial order of the court. The reference to supervision is perhaps a little misleading in that context. It deals essentially with a situation in which somebody is placed on bail under bail conditions and the relevant supervision order can be enforced in another EU member state with the result that a citizen of an EU member state who is subject to bail may move into another EU member state without breaching the relevant conditions of their bail order. That is essentially what it deals with. It has again been very rarely used since implementation in 2015. The number we had received at the time the regulations were laid was four since 2015. Interestingly, a further six have emerged since the regulations were laid, I think five of which have come from Cyprus. I do not know whether they all pertain to the same group, but the numbers are very small. In turn, the courts in England and Wales have issued two such supervision orders, but neither is extant. They have both expired because the relevant parties have been discharged or have gone through the criminal trial process. We do not anticipate that this will have any major impact.

The financial penalties order came into force in 2012, since which time we have received about 3,759 requests for enforcement of civil penalties, most of them from the Netherlands, and we have issued about 3,400 requests for the recovery of financial penalties, most of them to Poland.

We have one point to bear in mind. Where we issue a request for a financial penalty to be recovered, we do not get the money. It is retained by the EU member state that makes the recovery. To that extent we do not get a financial benefit, but where we do benefit is in the event that we are requested to recover a financial penalty; we can then retain it. The sums involved are relatively modest. The average fine is in the region of £300 based on figures collected in 2015. If that is applied to the number of requests we are getting, we are still talking about a sum of approximately £100,000. However, I emphasise that these estimates are approximate. As I say, it is not a case of us recovering the money that has been imposed by a UK court for reasons best known to the European authorities, I am sure; rather, the proceeds go to the jurisdiction that actually recovers the funds in the event that they do so.

[Lord Thomas of Cwmgiedd]

On the Minister’s last point, the ability of a court to fine someone who is here knowing that it will be enforced of course means that the court considers that a financial penalty might be more desirable than the imposition of a short term of imprisonment. Bearing in mind the desire to get rid of or reduce the number of short terms in prison, has anyone looked at the impact that imposing fines that we know will not be enforced will have on the policy of trying to reduce short terms of imprisonment?

[Lord Keen of Elie]

I do not believe that any distinct analysis has been made of that issue, but the noble and learned Lord will be well aware that the problem of recovering financial penalties is hardly limited to people who have gone to Poland or the Netherlands. There is a far more fundamental problem with recovering financial penalties within the United Kingdom. That is much greater in its extent and impact on the sentencing policies of the courts than that of the few people who move abroad after a financial penalty has been imposed and not paid. Of course we are looking at the whole area of sentencing policy with regard to the issue of short-term sentences, and we can only encourage the courts to move away from them in circumstances where they have confidence in the imposition of non-custodial sentences, which of course include community orders and financial orders. I would suggest that this is a relatively small aspect of a bigger problem, but I acknowledge the bigger problem. It is one that requires to be analysed fully as we take forward our sentencing policy.

That takes me neatly or otherwise on to the final point, which is the question of taking into account prior convictions. Just to be clear: this regulation addresses the question of what the court does once it has the information and the data. Indeed, the question of data transfer is, I am pleased to say, a matter for Home Office Ministers.

[Baroness Vere of Norbiton (Con)]

My noble and learned friend speaks for the Government.

[Lord Keen of Elie]

My Whip has just reminded me that I speak for the Government. Of course I do—with relish. Be that as it may, Home Office Ministers have in fact already brought forward an SI on plans to deal with the transfer of data under the ECR and that has already been debated and approved. But perhaps it is more important to point out that, with regard to the transfer of data concerning previous convictions, that can be secured under a European Council directive and therefore there remains a mechanism by which we can address the matter. The information flows will remain and travel under the mutual legal assistance convention of the European Council.

I come now to the purpose of the regulation itself. Under the existing European directive, the courts are bound to take account of a previous conviction in another member state. That is implemented by way of Section 143(2) of the Criminal Justice Act 2003. In the event that we are looking at convictions that occurred in a non-EU member state, the courts have a discretion to have regard to that previous conviction pursuant to Section 143(5) of the 2003 Act. The point that this regulation addresses is that, if we cease to be an EU member, we are no longer tied into the scheme for EU member states pursuant to Section 143(2) of the 2003 Act, but of course we will remain in a position to deal with this as a discretionary matter, as we would with other third-party countries.

The point of this regulation is simply that there is no logical reason for treating one set of third-party countries differently from another set: that is why the regulation brings the position with the EU 27 states into line in the event that we leave without a deal. That is what we are seeking to address, but I underline the point I made in my opening speech that this regulation is not to do with the transfer of data or access to information but with how the courts deal with it once they actually have that data or information. I hope that that covers all the points that have been raised by noble Lords.

Motion agreed.

Brexit: Powers of EU-UK Joint Committee

Lord Keen of Elie Excerpts

Wednesday 20th March 2019 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 given by my honourable friend the Minister for Exiting the European Union in the other place. The Answer is as follows.

“As is common in international agreements, the withdrawal agreement provides for a joint committee, comprising representatives of the United Kingdom and the European Union, to govern the implementation and application of the withdrawal agreement. The joint committee will have the powers listed in Article 164 to ensure both parties are able to discuss any issues that might arise concerning the management and operation of the withdrawal agreement.

As set out in paragraph 3 of Article 166, the joint committee will make all its decisions and recommendations ‘by mutual consent’ of the parties. In other words, it cannot act if the United Kingdom does not agree. That is an important protection for the United Kingdom, which honourable and right honourable Members should welcome.

Clearly, Parliament will expect that it will be able to undertake scrutiny of the work of the Joint Committee, as indeed will the European Parliament. Quite how that will operate is something which the Government will discuss with Members of this House and the other place, should this House give its support to the withdrawal agreement. But this House should be in no doubt that the Government’s approach at the joint committee will be underpinned by full ministerial accountability to Parliament”.

[Baroness Hayter of Kentish Town (Lab)]

Given the Government’s appalling record—ignoring both this House and the Commons; failing to influence either the mandate for their negotiations or, indeed, the outcome; and ignoring twice the view of the Commons on the deal—can the Minister assure the House that the joint committee’s work will be more accountable to Parliament than what we have witnessed so far? While I am on my feet, we have heard that the Prime Minister’s letter possibly arrived in Brussels too late to be discussed by the Council tomorrow. Can the Minister confirm whether that is the case?

[Lord Keen of Elie]

My Lords, I am not in a position to confirm or deny the position with regard to the postal service. However, I can say that, as always, Ministers will be accountable to Parliament for matters undertaken by the joint committee under the withdrawal agreement.

[Lord Thomas of Gresford (LD)]

My Lords, the UK and the EU are obliged to implement the joint committee’s decisions, which will, under Article 166, have the same legal effect as the agreement itself—but there will be no ratification of any decisions taken by the joint committee, obviously. In the absence of any agreement on an issue by the joint committee, under Article 170, the issue will then be referred to the arbitration panel, whose decision will be final and binding. Again, it will not go back to Parliament for discussion. What control, if any, does the House of Commons have over the joint committee’s decisions?

[Lord Keen of Elie]

My Lords, there are two obvious controls. First, Ministers or others will attend the joint committee with a mandate from Parliament. Secondly, pursuant to Section 25(2) of the Constitutional Reform and Governance Act 2010, a decision that constitutes an amendment to part of the treaty or replaces part of the treaty made by the joint committee would require ratification.

[Baroness McIntosh of Pickering (Con)]

My Lords, can my noble friend explain the current legal position on consultation on international agreements that have been reached with the Faroes, Norway and Iceland, which have carried over, particularly for the Scottish Government?

[Lord Keen of Elie]

Of course, international affairs are a matter for the United Kingdom Government. We do not undertake such matters without consultation with the devolved Administrations, where it has an impact on their interests. It is, however, simply a matter for the United Kingdom Government, not the Scottish Government.

[Lord Pearson of Rannoch (UKIP)]

My Lords, have the Government seen the Daily Telegraph article revealing that nearly all the civil servants in the Foreign and Commonwealth Office are trying to frustrate the Government’s policy of leaving the European Union? How will the national interest be served in the joint committee?

[Lord Keen of Elie]

My Lords, the Government as an entity do not read—and do not read the Daily Telegraph.

[Lord Tomlinson (Lab)]

My Lords, the noble and learned Lord said earlier that the Government always seek to follow the mandate from Parliament. Can he explain what the Prime Minister meant in her letter to Donald Tusk when she said:

“However, it remains my intention to bring the deal back to the House”?

[Lord Keen of Elie]

It means that her intention is to bring the deal back to the other place.

[Lord Lilley (Con)]

My Lords, does the issue of the appalling committee of two civil servants that will be able to make law for this country not dwarf that of Henry VIII clauses and so on, which has caused this House so much concern in the past?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the joint committee will not be constituted of two civil servants. Its final constitution is yet to be agreed. Nevertheless, it will involve Ministers and others coming together. The size of the committee may vary from time to time, according to the task presented to it, but I do not accept the proposition that it will comprise two civil servants.

[Lord Christopher (Lab)]

My Lords, I am not clear on the spread of the committee’s responsibility. For example, who will deal with the problem of $3 trillion being put through the City every day to deal with various contracts? There is high competition over them between several European countries, and New York in particular. Who will deal with that?

[Lord Keen of Elie]

These will not be issues for the joint committee. Its powers are essentially embraced by Articles 164 and 166 of the withdrawal agreement. I shall not go through them in detail at this stage, but their general purpose will be to ensure that the withdrawal agreement remains operational in circumstances where, for example, there is an unintended consequence or an apparent error in the agreement when it comes to its application. Therefore it does not extend to the sort of area that the noble Lord raises.

[Viscount Waverley (CB)]

My Lords, a lot of reference is made to this arbitration committee. Could the Minister kindly remind us who makes up this arbitration committee? What are the criteria under which this arbitration panel is made up and the matters relating to it decided?

[Lord Keen of Elie]

My Lords, it is important to distinguish between two entities for the purposes of the withdrawal agreement. There is the joint committee, which will operate pursuant to Article 164. The final constitution of that joint committee has not yet been arrived at, but it will require representation from the EU and the United Kingdom after withdrawal and the consent of both parties before any decision is made. In the event of a dispute, matters can be referred on to arbitration and there will be an arbitration panel, which will be appointed from experts agreed on by the parties to the withdrawal agreement.

[Lord Cormack (Con)]

Can my noble friend assure me that United Kingdom Ministers on this joint committee will speak with one voice?

[Lord Keen of Elie]

My Lords, United Kingdom Ministers always speak with one voice.

[Lord Thomas of Gresford]

The Minister said that there will not be two civil servants and we hear that there might be Ministers. Who will be the UK’s representatives on the joint committee, and how will they attain a mandate from the House of Commons—one which those negotiating recently most clearly did not have?

[Lord Keen of Elie]

My Lords, the final constitution of the joint committee has not yet been agreed. It will be addressed once exit has taken place. However, those who represent the United Kingdom on the joint committee, be they Ministers or others, will carry with them a mandate. They will be answerable to Parliament for the decisions made by the joint committee and the joint committee cannot implement decisions unless they are agreed to by both parties.

[Lord Soley (Lab)]

Whether they are Ministers or not, will they answer to Select Committees of this House?

[Lord Keen of Elie]

My Lords, it is intended that in due course the existing European committee—I am sorry; I have not been given the precise terminology for the committee—will continue to receive information from those attending the joint committee. The final arrangements for that have not yet been made.

[Baroness Smith of Newnham (LD)]

My Lords, I understand that at least one government Minister seems reluctant to give evidence to your Lordships’ Economic Affairs Committee. If there is precedent for Ministers being reluctant to give evidence, there is a valid question about how we make sure that anyone representing the country on the joint ministerial committee can be made to give evidence.

[Lord Keen of Elie]

My Lords, our Ministers are always answerable to Parliament.

[Lord Anderson of Swansea (Lab)]

My Lords, the Minister has said that the committee is answerable to Parliament. Does that mean that Parliament, or both Houses, can overrule its decisions? What would happen if Parliament were to do that?

[Lord Keen of Elie]

My Lords, Parliament could not overrule a decision of the joint committee. However, those attending the joint committee on behalf of the United Kingdom will take with them the mandate from this Parliament.

[Lord Purvis of Tweed (LD)]

Will the Minister be clear about how that mandate will be secured? Is it the assumption that, before the position of the UK representatives on the committee is presented to the committee, it will have been passed by a resolution of both Houses? If that is not the case, how can the Minister say that there will be a mandate?

[Lord Keen of Elie]

First, membership of the joint committee will not necessarily be fixed. Its final constitution has not yet been agreed and may vary from time to time. Secondly, the manner in which members will carry their mandate from Parliament has yet to be agreed.

Services of Lawyers and Lawyer’s Practice (Amendment) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Monday 18th March 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 12 February be approved.

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

My Lords, this draft amending instrument forms part of our ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively. Your Lordships will be aware that, in preparation for leaving the EU, the Government have signed a UK-Switzerland citizens’ rights agreement, as they have done with the EEA states that are outside the EU. This instrument will modify the way in which relevant retained EU law is revoked in order to retain regulatory provisions for those in scope of the UK-Switzerland citizens’ rights agreement if a withdrawal agreement with the EU is not agreed and implemented before the UK’s exit from the EU. This draft instrument makes changes to the relevant legislation in England and Wales and in Northern Ireland. Scotland is legislating separately with the same policy intention.

Noble Lords will be aware that the UK, as an EU member state, is required to implement two European directives for legal services which are extended to Swiss nationals under the EU-Switzerland free movement of persons agreement. As part of preparations to leave the EU, the Government laid a statutory instrument to amend the domestic legislation implementing these two directives. The original statutory instrument revokes the relevant provisions in the event that the UK leaves the EU without a deal.

This draft instrument amends the way in which the domestic legislation is revoked, retaining some provisions for Swiss lawyers and those in scope of the UK-Switzerland citizens’ rights agreement. This is to ensure that retained EU law operates effectively in the event that the UK leaves the EU without a deal, and that deficiencies in retained EU law are remedied in a way that reflects our agreement with Switzerland.

The UK-Switzerland citizens’ rights agreement grandfathers recognition and establishment rights for UK and Swiss lawyers, provided that they have transferred into a legal profession of the other state before exit day. It also protects the rights of UK and Swiss lawyers who are established, registered and providing services under their home title. So long as they remain registered, they will be able to continue to provide services as they do now. It also provides a transition period of four years for lawyers to register as registered European lawyers or to transfer into a legal profession of the other state under these arrangements. These arrangements include citizens who have started but not finished studying for professional legal qualifications.

Finally, it allows lawyers and law firms to continue to provide up to 90 days’ temporary services a year for at least five years, where a contract to provide such services was agreed and started before exit. Swiss lawyers will also be able to apply within four years of exit day to join an English and Welsh or Northern Irish profession on the basis of three years’ qualifying experience as a registered European lawyer, in addition to routes available to foreign-qualified lawyers. For Swiss lawyers and law firms with interests in the UK, this instrument will bring legal certainty. It will effectively implement in domestic law the obligations that we have undertaken at the level of international law pursuant to the UK-Switzerland citizens’ rights agreement, which is why it is necessary to bring forward this instrument at this time. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I congratulate the Ministry of Justice team on producing an impact assessment which would meet the deepest desires of the noble Lords, Lord Adonis and Lord Foulkes. It is excellent. It fully covers the material and, combined with the evidence base, must have involved a great deal of work. The tragedy is that it refers only to 10 Swiss lawyers in this country—and not only that but it has no effect unless we leave the EU without a deal, which looks increasingly unlikely, having regard to the Motions passed in the House below. However, in itself this instrument contains nothing objectionable.

[Lord Beecham (Lab)]

My Lords, it is ironic that our departure from the EU, if it occurs, will necessitate an agreement with Switzerland, which of course is not a member. Can the Minister indicate the extent of the problem that the regulations seek to address? How many Swiss lawyers currently practise in the UK—my understanding is that there might be as few as 10—compared with EU lawyers, and how many UK lawyers do so in Switzerland? How do these figures compare with those of other EU states?

The regulations are described as resulting “in the short term” with parties avoiding,

“the costs of adjusting their business models”.

How long is this short term expected to be, and what is the estimate of the cost of adjusting business models?

Paragraph 12 of the Explanatory Memorandum avers that there are all of 10 Swiss registered European lawyers in England and Wales. How many is it estimated will be here after Brexit? The impact assessment states that clients seeking legal services from them will not be allowed to obtain them unless the lawyers are “permanently established in the UK”. How is that status to be established? How many are deemed to fit that description now—presumably there are 10—and how will that be judged in the future? What is the rationale of the provision that Swiss lawyers will have only four years after Brexit to apply for REL status? Why will Swiss lawyers with contracts be able to serve clients for 90 days a year for up to five years? Why just 90 days? Will they have to abandon their clients in the midst of cases, for example?

The impact assessment fails to live up to its title when it explicitly states that:

“The cost of this change cannot be quantified as no data exists showing the number of Swiss lawyers providing regulated services in the UK on a temporary basis”,


and that the,

“cost to regulators is not quantifiable”.

Can the Minister indicate which provisions of these regulations, if any, are quantifiable? What is the anticipated impact on UK lawyers practising, or seeking to practise, in Switzerland, given that they will have a four-year period to register or, if not yet in Switzerland, to apply to transfer to Swiss professional status? UK law firms will be able to continue to serve existing Swiss clients for up to 90 days a year for five years after Brexit subject to written contracts being in place before exit day. What is the estimate of the number, and proportion of the existing number, that Her Majesty’s Government envisage will do so?

The Law Society points out that there is no provision to allow UK law firms to operate in Switzerland under their current structures. What, if any, estimate have the Government made of the impact of this position? The society suggests that some firms will have to amend their corporate structure and that a future trade agreement with Switzerland will have to be negotiated. What, if any, plans do the Government have to deal with this eventuality? What estimate have the Government made of the impact of the changes on the international standing of UK legal services and the contribution they make to the standing of our legal services and to our economy?

[Lord Keen of Elie]

I am obliged to noble Lords. I think the answer to the question posed by the noble Lord, Lord Beecham, is that we are implementing an international treaty, and that is why these steps have been taken. However, to respond to the point made by the noble Lord, Lord Thomas of Gresford, no Swiss lawyers are registered with the Bar Standards Board. We understand that 10 are registered with the SRA, and that is where that figure comes from.

It is not necessary for Swiss lawyers coming into the United Kingdom to carry out temporary work to register and therefore it is not possible to monitor the number, because they are entitled to come in on a temporary basis to provide legal services. The period of four years reflects the fact that it is possible for a Swiss lawyer to transition into membership of the relevant professional body in the United Kingdom in under four years—I understand that at present it is three years—and therefore there is full allowance for that.

With regard to English lawyers practising in Switzerland, at the last count, which I think goes up to 2015-16, in the region of 236 lawyers practising in Switzerland full-time were English-qualified.

With regard to the future corporate structure of English firms operating in Switzerland, I would not venture a view as to what the precise structure would be in the future. However, from engagement with the major legal firms in England and Wales over the last year or so, it is quite clear that they have made provision in anticipation of our leaving the EU, with the consequent effect that that will have on the EU-Swiss agreements on which we rely. We can therefore be reasonably confident that their structures will be compliant with the requirements of Swiss law.

On the question of the international standing of our legal profession, we see no reason to doubt that it will be maintained after Brexit, nor any reason why the terms of the UK/Switzerland citizens’ rights agreement as implemented by this SI should in any way derogate or detract from the standing of our legal profession in England and Wales, and indeed in the UK as a whole.

In these circumstances, we consider that this is a relatively technical amendment to the existing provision that is being made in anticipation of our departing from the EU without a deal. Of course, in the event that the deal is implemented and we go into a transition period, the application of this instrument will be deferred until the end of that period. We will then determine at that time whether in fact we have in place the relevant free trade agreements with both the EU and Switzerland.

[Lord Beecham]

Before the Minister sits down, obviously I was throwing questions at him that he may not have been able to answer, so will he perhaps cover those that have not been answered in a letter to me in due course?

[Lord Keen of Elie]

I will consult Hansard. If it appears that there is a question that the noble Lord posed that is relevant to this instrument then I will respond.

Motion agreed.

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Lord Keen of Elie Excerpts

Monday 18th March 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 14 February be approved.

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

My Lords, this draft instrument forms part of the Government’s work to ensure there are functioning domestic laws in the event that the UK leaves the EU without a deal on cross-border co-operation on family law. The instrument relates solely to the Government’s no-deal exit preparations. Again, should we reach an agreement on our future relationship with the EU, the Government will review the instrument and amend or revoke it as necessary at the end of a transition period.

This instrument gives effect to a commitment that I gave on behalf of the Government during the debate on 29 January on the Government’s main no-deal family law instrument, the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019. That family statutory instrument has now been made. It puts in place the arrangements in cross-border family law cases that will apply if we leave the EU without a deal. That instrument revokes the retained EU law in relation to Brussels IIa and the maintenance regulations and makes consequential changes to domestic law, including changes to ensure that the jurisdiction rules for cross-border maintenance matters are restored to their pre-EU form.

This small amending instrument addresses a technical issue raised by family law stakeholders. Some family law stakeholders have raised concerns that by the amendments to the Children Act 1989 and the Children (Northern Ireland) Order 1995 made by the main family instrument, we have inadvertently narrowed the jurisdiction of the court and the range of financial remedies that the court may order when compared to the position that currently exists under the EU maintenance regulation. That was not the Government’s intention. Without fixing this issue, the consequence would be that in some cases the court would be limited in terms of the financial remedies that it may grant. For example, the court would be able to make an order only for periodical payments and not for a lump sum or a property settlement or transfer. I extend thanks to the family law practitioners for bringing this issue to our attention.

While the existing approach is workable, the Government have decided to address those concerns to ensure that jurisdiction grounds and remedies are not reduced as a result of a no-deal exit because these are jurisdiction grounds and remedies that emerged after we had engaged with the relevant EU regulation. The instrument therefore amends the principal 2019 regulation so that, post exit without a deal, the courts in England and Wales or Northern Ireland will be able to order all types of financial remedies available under the Act or the Northern Ireland order in circumstances where either a parent, a guardian or the child is habitually resident or domiciled in England and Wales or Northern Ireland at the date of the application. The amendments also ensure that the court has jurisdiction to order a financial remedy in respect of a child where the parents are not married, in a similar way to when child maintenance is being considered ancillary to divorce.

The impacts of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 were set out in an impact assessment published on 24 January 2019. This instrument amends those regulations so that the unintended impact of the amendments to the Children Act 1989 and the Children (Northern Ireland) Order 1995 on the court’s jurisdiction and remedies is rectified. As amended, the impact of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 will be as described in the original impact assessment. In other words, we had assumed that they would operate in the way in which they now operate in light of this supplementary instrument.

As I said, the instrument addresses concerns raised by stakeholders. My officials met these stakeholders to discuss their concerns. A draft of this instrument was provided to the statutory Family Procedure Rule Committee. Its members include some of the family lawyers who raised these concerns about the amendments to the Children Act 1989 and they were invited to comment on the draft. Those comments were taken into consideration before the instrument was finalised and laid. In addition, my officials have spoken to officials within the devolved Administrations.

In these circumstances, I stress that this is a highly technical instrument, which is intended to take us to the point we believed we would get to with the principal instrument. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, the amendment which the regulation seeks to make is obviously highly desirable. However, I have a question for the Minister, because I cannot for the life of me see how it achieves its purpose in expanding the financial remedies available under domestic legislation. As far as I can see, the only passage which might possibly have a bearing is Regulation 2(2)(a), where we are told that the words,

“in relation to matters relating to maintenance”,

are being deleted. Without more context, it is extremely difficult to see whether this achieves what the regulation seeks to do. I am happy to take the Minister’s assurance that it does, or perhaps he can explain it a bit more. It is characteristic that these instruments are so economically worded that, without a whole lot of legislative material in hand, it is sometimes hard to make sense of them.

[Lord Beecham (Lab)]

My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.

This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?

This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.

The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. As the noble and learned Lord, Lord Hope, observes, the supplementary instrument is distinguished by its brevity. Nevertheless, I can assure him that it has the effect indicated by making the deletion from the relevant provision regarding maintenance. That was raised with the Family Law Committee as well. We consider that this will be effective. I will look at the point he raises and will write to him if there is further elaboration and assurance I can give him on it.

Regarding consultation, this issue arose at a very late stage when we were proceeding with the principal instrument. It is a highly technical issue. Indeed, there is some uncertainty as to whether the principal instrument did in fact cover these issues. It therefore proceeded, but, in the light of the concerns that had been expressed, we consulted further with family law stakeholders and brought it to the committee’s attention. It was determined that we should, on any view, take the line—I was going to say “of least resistance”—that, come what may, there was no technical deficiency in the instrument in the event that we exited without a deal.

There was consultation with relevant stakeholders when the principal instrument was considered. Their response on these points came rather late in the day as far as we were concerned. The principal instrument therefore proceeded but I remind noble Lords that when I moved it I drew this point to the attention of the House quite specifically and said that we were giving consideration to a further instrument to address it. It has been at the forefront of our minds for some time. In the circumstances, I commend the regulations to the House.

Motion agreed.

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Keen of Elie Excerpts

Tuesday 12th March 2019 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:

“I would like to make a Statement about my legal opinion on the joint instrument and unilateral declaration concerning the withdrawal agreement published last night.

Last week, I confirmed I would publish my,

“legal opinion on any document that is produced and negotiated with the Union”.—[Official Report, Commons, 7/3/19; col. 1112.]

This has now been laid before the House. This Statement summarises the instruments and my opinion of their legal effect.

Last night in Strasbourg, the Prime Minister secured legally binding changes that strengthen and improve the withdrawal agreement and the political declaration. The Government laid three new documents reflecting these changes in the House: a joint legally binding instrument on the withdrawal agreement and the protocol on Northern Ireland; a unilateral declaration by the United Kingdom in relation to the operation of the Northern Ireland protocol; and a joint statement to supplement the political declaration. The legal opinion I have provided to the House today focuses on the first two of these documents, which relate to the functioning of the backstop and the efforts of the parties that will be required to supersede it.

Let me first tell you what, in my opinion, these documents are not about. They are not about a situation where, despite the parties using good faith and their best endeavours, they cannot reach an agreement on a future relationship. In my opinion such a scenario is, in any case, highly unlikely to occur. It is in the interests of both the United Kingdom and the European Union to agree a future relationship as quickly as possible. Were such a situation to occur, however, the legal risk, as I set it out in my letter of 13 November, remains unchanged.

Let me now move on to what these documents do achieve. As I set out in my opinion, the joint instrument puts the commitments in the letter from Presidents Tusk and Juncker of 14 January 2019 into a legally binding form and provides, in addition, useful clarifications, amplifications of existing obligations and some new obligations. The joint instrument confirms that the European Union cannot pursue an objective of trying to trap the United Kingdom in the backstop indefinitely. The instrument makes explicit that this would constitute bad faith, which would be the basis of a formal dispute before an arbitrator. This means, ultimately, that the protocol could be suspended if the EU continued to breach its obligations.

The joint instrument also reflects the United Kingdom’s and European Union’s commitment to work to replace the backstop with alternative arrangements by December 2020, including as set out in the withdrawal agreement. These commitments include establishing,

“immediately following the ratification of the Withdrawal Agreement, a negotiating track for replacing the customs and regulatory alignment in goods elements of the Protocol with alternative arrangements”.

If an agreement has not been concluded within one year of the UK’s withdrawal, efforts must be redoubled. In my view, the provisions of the joint instrument extend beyond mere interpretation of the withdrawal agreement and represent materially new legal obligations and commitments which enhance its existing terms.

The unilateral declaration records the United Kingdom’s position that, if it were not possible to conclude a subsequent agreement to replace the protocol because of a breach by the European Union of its duty of good faith, it would be entitled to take measures to disapply the provisions of the protocol in accordance with the withdrawal agreement’s dispute resolution procedures and Article 20, to which I have referred.

There is no doubt, in my view, that the clarifications and amplified obligations contained in the joint statement and the unilateral declaration provide a substantive and binding reinforcement of the legal rights available to the United Kingdom in the event that the European Union were to fail in its duties of good faith and best endeavours.

I have in this Statement and in the letter I published today set out my view of the legal effect of the new instruments the Government have agreed with the European Union. However, the matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not 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. I commend this Statement to the House”.

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

My Lords, I do not propose to repeat the speech I made yesterday, in which I suggested that it was inappropriate for lawyers to determine an issue as important as whether the backstop had run its course. I am very pleased that in the conclusion to his Statement today, the Attorney-General emphasised that matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. As it is a political decision, it is really not right to ask lawyers to determine whether a state is acting in bad faith, as the noble and learned Lord said a moment ago. I commend the Attorney-General for sticking firmly to the opinion that he first gave and not being shifted, despite the enormous pressure I have no doubt he is under.

An aggrieved party under this instrument would have to persuade the arbitrators to prove—as the noble and learned Lord, Lord Goldsmith, said—that the other party had failed the best endeavours test with the objective of applying the backstop indefinitely. Further, he would have to prove that there had been a persistent failure or a systematic refusal to consider the other side’s proposals. Only if the arbitrators found in the aggrieved party’s favour would they be able to use temporary measures to suspend the backstop—and I emphasise the word “temporary”. The other party could cure the problem at will at any time by taking the necessary measures to comply with the ruling.

My first question to the Minister, therefore, is this: what does he envisage to be temporary measures? What does that mean? Clearly, it would not be a permanent unilateral withdrawal from the backstop. What would happen at the Northern Ireland border to the free passage of goods if temporary measures were taken? Would it be a smuggler’s free for all or a clamping down?

The Attorney-General originally advised that it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for a breach of good faith and best endeavours because of the difficulties of proof and the egregious nature of the conduct, which would have to be established. I remind your Lordships that according to the Oxford English Dictionary, the word “egregious”, which the Attorney-General in typical fashion rolled off his tongue, means “shocking”. Is it now then all about timetables? That is all that the instrument appears to lay down. I listened to the Attorney-General talking in the other place about time being of the essence. To every lawyer, that phrase means that if the timetable is not adhered to, the whole agreement is defunct. The United Kingdom negotiators have not shown themselves to be particularly conscious of time over the past two and a half years. Will a breach of the timetable on either side now amount to egregious, shocking conduct, sufficient to trigger the dispute settlement arbitration procedures?

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords for their contributions. Referring to the observations of the noble and learned Lord, Lord Goldsmith, I will perhaps begin where he finished. If the noble and learned Lord was to revisit his study of early Italian Renaissance sculpture, he might be reminded that the fig leaf can cover some very important bits. Therefore, one must bear in mind that the use of analogies is not always entirely helpful.

In paragraph 19 of his opinion, the Attorney-General set out his view that the legal remains unchanged. But that was not the question that was being addressed. The issue that exercised people was one of an extreme nature, which one would, frankly, never anticipate arising where parties have entered into an international treaty in good faith and intend to discharge their obligations under that treaty in good faith. As I observed in a previous debate, if you simply do not trust the person with whom you are contracting or entering into a treaty, there is little point in doing so—you would not proceed in the belief that they would ever finally discharge their obligations. Here, however, we proceed in the confident belief that their obligations will be addressed and met.

It is therefore important that, in the context of the further agreement, the parties have fixed a date of December 2020 by which to use their best endeavours to arrive at an alternative to the backstop. It is in these circumstances that it is considered appropriate, as the Attorney-General observed in paragraph 7 of his opinion, to note that the provisions now represent materially new legal obligations and commitments which mean that unconscionable behaviour on the part of the EU, and failure to fulfil its obligation to seek suitable and alternative practical means of dealing with the backstop, would have to be properly addressed in the context of the arbitration provisions.

It is in that context that I come to address the questions posed by the noble and learned Lord, which touch upon each other. He began by asking how, if there is bad faith by the European Union, we would prove it. There are circumstances in which it would become apparent that the European Union was intent upon seeking to trap the United Kingdom in the backstop, notwithstanding the provision of alternative arrangements. But let us be clear: one does not anticipate or foresee that that would ever occur.

On that point, I note that the backstop has significant drawbacks for the European Union, just as it has significant drawbacks for the United Kingdom. If it were ever to emerge, the backstop would result in Great Britain enjoying the benefits of a customs union and paying nothing for that. The relevant payment in respect of the customs union would come from trade in Northern Ireland, not in Great Britain. Let us remember that there is very little in this that benefits the European Union, let alone the United Kingdom.

If we were, however, to find ourselves in a situation in which there was shocking or egregious conduct on the part of the European Union, the arbitration measure would be available. In finding that there was a breach, the arbitrators would be entitled to grant temporary measures. That would include a temporary suspension of the operation of the relevant backstop provisions with regard to the border.

The noble Lord, Lord Thomas, asked, quite rightly, what would happen at the border. One answer is that we would find ourselves in that situation only where the European Union had not been prepared to engage with coherent, sensible proposals put forward by the United Kingdom to deal with the border and ensure that it could remain entirely open. If a suspension was ordered by the arbitrators, it would then be open to the United Kingdom to implement those proposals unilaterally at the border in order to deal with the issue. If thereafter—in utterly extreme circumstances—the European Union was to persist in refusing to engage with the temporary suspension of the protocol, the arbitrators would eventually come to the conclusion, quite rightly, that the protocol was simply not required; that it was no longer “necessary” because the alternative arrangements during the suspension had clearly worked to the satisfaction of the European Union, which had done nothing in the meantime. Again, I stress that we are talking about the most extreme of circumstances. I do not contemplate that, politically, anyone will go there.

[Lord Goldsmith]

The noble and learned Lord has given us extreme examples such as unconscionable behaviour and all the rest of it, but does he not agree that the most likely circumstance in which we fail to agree is because we fail to agree? We have seen it over a period of time already, and know that it does not have to be unconscionable or as a result of bad faith. In those circumstances, none of these arguments would avail.

[Lord Keen of Elie]

I do not accept the noble and learned Lord’s suggestion that that is the most likely or probable outcome. We have already seen circumstances in which parties have laid out the suitability of alternative arrangements for the border between Northern Ireland and the Republic of Ireland. Work will go on with regard to that. There is going to be a track of work carried out as soon as the withdrawal agreement is concluded in order to bring that to fruition by December 2020. There is therefore no reason to suppose that such a thing is impossible. If we have a situation in which the EU simply refuses and turns its face away from a workable proposal, then there will be an issue of good faith and best endeavours to be addressed and disposed of. But the political reality is different. This is very much a situation in which we are dealing with an extreme. Equally extreme is the idea that somehow, over a period of almost two years, the parties would not be able to conceive of a means of dealing with the border except by means of the backstop.

--- Later in debate ---

[Baroness Goldie (Con)]

Order. May the Minister respond?

[Lord Keen of Elie]

I will welcome the noble Lord’s comments. His reference to Latin will no doubt enhance this debate. However, for the moment, I entirely concur with the observations of the noble and learned Lord, Lord Mackay of Clashfern. It would be foolish in the extreme to make an important—indeed, significant—political decision on the basis of a risk that can genuinely be regarded as negligible.

[Lord Davies of Stamford]

My Lords, I apologise for my slip. The word “egregious” derives from the Latin “e grege”—outside the flock; in other words, it means abnormal, out of the ordinary. “Shocking” is the wrong translation.

The elaborate piece of theatre that the Government staged last night in Strasbourg and the opinion of the Attorney-General have been designed to ensure that we do not stay in the customs union. As the Minister himself acknowledged, staying in a customs union would be greatly in the national interest. The Government’s policy in this matter is 180 degrees in the wrong direction. Industry and commerce are crying out for the opportunity to stay in the customs union. If we did find that opportunity, I hope we would grasp it. It is much more likely to come to us not from bad faith on the part of the Commission or the Irish but simply because the whole idea of establishing a frontier that is not a frontier proves to be hocus-pocus, as my noble friend Lord Bassam has shown. No such technology is even under study at present. Anyone who knows anything about venture capital knows that the chance of a blue-sky idea becoming viable and generating money is, at best, one in 20.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord for his address on “egregious”, and I do not disagree with the derivation of the term. It would be an abnormal situation to find ourselves in, and that is why I reiterate that it would be exceptional, unusual and unfortunate for us to proceed to make a political decision based on such an abnormality. The point I sought to make on the customs union is that in so far as we remain within it as a consequence of the backstop, if we ever did, it has clear deleterious impacts upon the European Union. We would, in a sense, be getting a free ride on the customs union so far as Great Britain is concerned, but not so far as Northern Ireland is concerned. But I do not anticipate that we are ever going to find ourselves within that backstop and, therefore, within that customs union.

[The Archbishop of York]

My Lords, I have had the chance to study the Attorney-General’s comments and I agree with the noble and learned Lord, Lord Mackay, that the Attorney-General is right. There will always be a legal risk and he would be wrong not to tell us that it remains. But that is the nature of risk. I am told that in Chinese the word “risk” is made up of two pictures—opportunity and danger. We have to look at the opportunities and then the danger, but not always concentrate on the danger.

For the likes of me, the pint is always half-full. For some, it is always half-empty. I thought that the worry about the backstop was that there was no timetable in which this matter might be resolved. December 2020 has been put into the agreement. There was also a worry that the United Kingdom might not be able to unilaterally withdraw from arrangements that did not help the rest of us. That has changed and is now reflected in the protocol. I agree with the noble Lord, Lord Thomas, that it is not lawyers who will resolve this but political will, which is the way in which we should proceed.

Having read the legal opinion, I am of the view that although what has been achieved by the Prime Minister does not take away the legal risk, the issue is more about what will happen in terms of agreements. In the end, do we believe as a nation that we are capable of achieving the best agreement in our interests and those of Europe? We have been good at negotiating protocols that have helped democratic institutions all over the world. This is a time to start believing that we should create a good agreement by 2020 and show good faith. If others do not do so, then the arbitration would come into being.

I want us to take the Chinese view; there is always danger in risk but this is the time for me to say to everybody: let us seize the opportunity and be reconciled on an issue that looks difficult. A time may come, friends, when although lawyers talk and talk—I am one of them—this issue should not be resolved by them but by politicians.

[Lord Keen of Elie]

I am obliged to the most reverend Primate the Archbishop of York. I agree with his observation that ultimately we are concerned with a political, not legal, decision. We have to remind ourselves that the withdrawal agreement is the means to an end, not the end in itself. Either we leave on 29 March without any deal in place, because the law has already determined that that is our exit date, or we can leave sensibly, with a withdrawal agreement that takes us into the realms of further negotiation for our future relationship. There is no reason to suppose that as a consequence of that further move we are ever going to find ourselves in the backstop, let alone considering how to come out of it.

[Lord Kerr of Kinlochard (CB)]

There are two other options. We could of course change the law and we could take an extension under Article 50. I think there are new elements in the new texts. I do not think they remedy what is, for me, a humiliatingly bad deal, but I see two new elements. First, there is a greater urgency—or an impression of urgency—in the treatment of the search for alternative arrangements to the backstop. The impression created is that the philosopher’s stone will be more actively sought. That does not guarantee that the philosopher’s stone will be found, and that is the risk that the noble and learned Lord, Lord Mackay of Clashfern, might want to bear in mind as well.

The second point is more legal than political. I see a change in the treatment of the risk of being trapped in the backstop because the European Union breaks the commitment in Article 5 of the withdrawal agreement to exercise good faith. As the Minister said, however, that is a vanishingly small risk. As the noble and learned Lord, Lord Goldsmith, said, the real risk is that the search for a mutually acceptable solution—a workable alternative arrangement—continues for some considerable time to prove fruitless. That is the real risk. Alchemy is like that. Does the Minister agree? Does he also agree with Mr Varadkar that the texts are perfectly acceptable because the withdrawal agreement has not been reopened and the backstop not been undermined?

[Lord Keen of Elie]

My Lords, I do not agree with the noble Lord, Lord Kerr, on the matter of alchemy. Nevertheless, I agree with much of what he had to say. These further agreements inject a greater element of urgency into the whole process that is to be carried on and underline that this process will be carried on in good faith. That being so, there remains the outlier risk that a solution will not be found by December 2020. We remain confident that it will be. But in the event that it is not, the backstop will continue for a period. Wherein lies the disaster?

[Viscount Hailsham (Con)]

Does my noble and learned friend agree that, if at the end of this week the House of Commons discusses a delay to the Brexit date, a short delay would be entirely useless? Does he agree that what is required is a substantial delay of the kind advocated by the noble Lords, Lord Kerr and Lord Hannay, or the noble Lord, Lord Armstrong yesterday? As existing members of the European Union, we could discuss and negotiate our future relations with the European Union either within or without. Does he agree that that does not necessarily involve Brexit or, necessarily, a further referendum? Indeed, it might involve a Government of national unity to negotiate.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, my views on whether an extension should be short, long or anything in between are of no moment because, at the end of the day, any extension sought will have to be on the basis of consent with the European Union.

[Lord Cormack (Con)]

My Lords, does my noble friend agree that nobody would ever take any medicines if they read the leaflet in the packet in detail? That is the sort of risk we are talking about. Does he further agree that the deal on offer should be accepted tonight in another place and we should then move on?

[Lord Keen of Elie]

My Lords, I concur with both of my noble friend’s observations.

[Lord Wallace of Tankerness (LD)]

My Lords, the noble and learned Lord emphasised the importance in the joint instrument of urgency. Indeed, paragraph 7 of the Attorney-General’s opinion today states:

“Therefore, provided the United Kingdom can clearly demonstrate in practice that it is effectively organised and prepared to maintain the urgent pace of negotiations that they imply, the EU could not fail to match it without being at risk of breaching the best endeavours obligation”.


As the Minister has emphasised that this is political, perhaps rather more than legal, I ask him a political question. Can he give the House three examples of when, since March 2017, the United Kingdom Government, in dealing with Brexit, have clearly demonstrated in practice that it is effectively organised?

[Lord Keen of Elie]

Respectfully, it appears to me that we have demonstrated that throughout the process.

[Lord Carlile of Berriew (CB)]

My Lords, can we return to the legal advice, which is the subject of this Statement? Does the noble and learned Lord agree that the legal advice has not changed at all—yes or no?

Further, if we adopt his attractive metaphor about Italianate sculpture, does the Minister agree that if yesterday’s breathless Statement from the Prime Minister, anticipated in the House of Commons, is a fig leaf, if we lift that fig leaf, we will find that behind it are no parts whatever? To proceed towards an impossible, extreme scenario, as suggested by the noble and learned Lord himself, is something that a skilled lawyer in private practice, as the noble and learned Lord has been, would say to every client, “You can’t do it”.

[Lord Keen of Elie]

My Lords, as regards the legal advice, I refer back to paragraph 7 of the Attorney-General’s letter, in which he said that the,

“Joint Instrument extend beyond mere interpretation of the Withdrawal Agreement and represent materially new legal obligations and commitments”.

To that extent, we have moved on. But of course, he also made absolutely clear that the legal risk that had been addressed in the context of whether there was a unilateral right to leave the backstop had not changed and that there was no internationally lawful means of exiting the protocol’s arrangements except by agreement. But context is everything.

On the second point, there appear ample grounds for supposing that, in taking this forward, we will arrive at a resolution of an issue that troubles lawyers but I suspect does not trouble politicians quite as much: whether or not the backstop is somehow a black or white outcome. It is not an outcome that is anticipated nor one that we believe we will have to address, and if we have to address it, we do not believe it will ever be permanent, and that for political reasons alone.

[Lord Campbell of Pittenweem (LD)]

My Lords, I wanted to ask the noble and learned Lord to name an alchemist who ever succeeded in his determination to turn lead into gold, but perhaps that is for another occasion. Since we are talking about risk, it is important to remember that one risk that featured very strongly in noble Lords’ consideration of these matters is the possibility that anything that seemed to have the effect of recreating a border between the north and south of Ireland was a risk we were not willing to take. One reason for that was the fragility, albeit that it is still in existence, of the Belfast agreement. I say with due respect to the noble and learned Lord, Lord Mackay of Clashfern, that when one is considering risk, this is not crossing the road: it is a risk that could have the effect of bringing to an end many years of fragile peace. In those circumstances, it is hardly surprisingly that people want to be pretty certain, before that risk is taken, that to do so is not likely to lead to an adverse outcome.

[Lord Keen of Elie]

With respect to the noble Lord, Lord Campbell of Pittenweem, I must say that I entirely disagree with his analysis. The whole point of the present withdrawal agreement and the Northern Ireland protocol is to ensure that we adhere not only to the terms but to the spirit of the Belfast agreement. That is why the backstop has been formulated in the manner in which it has. We will leave the backstop only when, or if, there is a need to put in place alternative structures that do not require a hard border between Northern Ireland and the Republic of Ireland. I reiterate my belief that we will never actually enter the backstop in the first place. We have that period up to December 2020 in which to address this issue and it is not beyond the wit of man or alchemist to resolve such an issue.

[Lord Hannay of Chiswick (CB)]

My Lords, the Attorney-General stated:

“A unilateral declaration by one party to a bilateral agreement constitutes an authentic interpretation of the treaty if it is accepted by the other party”.


Does he not find that a little odd? It would not then be a unilateral statement at all but a joint statement. On what authority did the Attorney-General say that the EU has agreed to the UK unilateral but it will not object to the UK unilateral statement? I see no trace of that in any of the documents.

Secondly, the use of the arbitration procedure remains shrouded in mystery as a result of the provision in the withdrawal treaty that any dispute involving the interpretation of EU law has to go to the European Court of Justice and not the arbitration panel. It that likely to be the case in most of the disputes?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, with respect to the two points raised, a unilateral declaration by one party can have legal status as an interpretive document in the context of international law. In circumstances where the other party does not object to the unilateral statement, it will be seen to have legal status with regard to that party’s interpretation of the relevant treaty. In that context, I therefore see no difficulty with the opinion expressed by the Attorney-General on that point.

On the suggestion that the arbitration will be shrouded in mystery because of the need to refer a point of law to the European Court of Justice, I remind the noble Lord of my response to a question from him some time ago, when I pointed out that the real issue will be of fact, not law. It is therefore difficult to envisage the European Court of Justice having any material role in the context of a dispute over good faith or best endeavours.

Prisons: Rehabilitation

Lord Keen of Elie Excerpts

Tuesday 12th March 2019 Lords Chamber

[Baroness Pidding]

To ask Her Majesty’s Government what assessment they have made of the case for ensuring that prisons are places of rehabilitation.

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

My Lords, the Government are committed to ensuring that prisons are places of rehabilitation, which ultimately reduces reoffending. Evidence suggests that former prisoners who have undertaken learning in prison are materially less likely to reoffend. We are making ambitious reforms to the prison education system to ensure increased offender attendance, routine performance measures, and greater governor responsibility over the commissioning of education.

[Baroness Pidding (Con)]

My Lords, I thank my noble and learned friend for that response. When an offender is released from prison, they are much less likely to continue committing crime if they have a job, yet only 17% of ex-offenders are in work a year after coming out of prison. Education, training and work are essential to prisoners turning their lives around. What more can the Government do to support our prisons in delivering these vital skills and opportunities?

[Lord Keen of Elie]

My Lords, we absolutely agree that education, training and work are central to prisoners turning their lives around and we believe it is right and sensible for ex-prisoner employment to come from a number of different sources. The corporate social responsibility agenda has an important place here. We have also launched the New Futures Network to engage and persuade employers to take on ex-prisoners and are developing a new policy of release on temporary licence to increase the opportunities available to prisoners to gain experience in the real workplace.

[Lord Bird (CB)]

My Lords, next week I am going to a wonderful literary festival in Erlestoke prison. It is a brilliant idea and, even though there are problems of money, it shows that, if you have leadership in prison among governors, you can turn things around. It is called Penned Up, it is next week and I would love all noble Lords to come.

[Lord Keen of Elie]

My Lords, I might prefer to be there next week—I might even be available. Be that as it may, the noble Lord makes an extremely good point. That is why, from 1 April, one change we are bringing in is the delegation of responsibility in these areas to individual governors so that they can take this sort of initiative forward for the benefit of all prisoners.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, does the Minister agree that the drug problem—and prisoners going in and going on to drugs—is one of the most difficult that we have in prisons? Is not getting prisoners off drugs the best help we can give with rehabilitation? Does he know the organisation Narcotics Anonymous? Some of its members are ex-prisoners who have recovered from drug addiction and go—or endeavour to go—back to prisons to help prisoners get off drugs. Is he aware that many governors will not permit them to go in and do this voluntary work? Will he explore this and invite representatives of that organisation to discuss with him how, voluntarily and free of charge, they can help prisoners to get off drugs?

[Lord Keen of Elie]

The noble Lord makes a very good point: the scourge of drugs in prisons is one that we must meet if we are to improve conditions for all prisoners across the prison estate. It undermines other efforts made in regard to education and rehabilitation—there is no question whatever of that. I am not familiar with the work of the particular body that the noble Lord referred to, but I will make inquiries about what the position is with regard to its initiative. Ultimately, it will be for individual governors to determine how this matter is taken forward, but, as I indicated to the noble Lord, I will look into how we respond to those initiatives.

[The Lord Bishop of Southwark]

My Lords, given the recent publication by the Ministry of Justice of figures showing a record level of the incidence of self-harm by prisoners, a record level of prisoner-on-prisoner assaults and a 29% rise in assaults on prison staff, will the Minister acknowledge that we need not only a major reduction in the size of the prison population but increases per capita in resources on a scale not yet contemplated by Her Majesty’s Government? This would give rehabilitation the priority that many now see as an absolute imperative.

[Lord Keen of Elie]

The right reverend Prelate is quite right: safe and decent prisons are the foundation of any initiative that we wish to take in rehabilitation and the reduction of reoffending. There are very real challenges there, particularly in the context of prisoners who are inclined to violent behaviour. However, it has to be understood that we are dealing with a very difficult cohort of people and that control over that cohort can be demanding. We have increased the number of prison officers over the past two years by more than 4,700. It would be fair to say that more can always be done in the face of such challenges, but we are seeking to do what we feel is appropriate to improve matters and, as I said, we believe that the delegation of more direct responsibility to individual governors will also be a step in the right direction.

[Lord German (LD)]

My Lords, the evidence that one can find shows that short-term prison sentences, rather than tough community sentences, lead to far more reoffending. Our prisons are overcrowded and prisoners are often moved from one prison to another, thereby breaking the training programmes that they may be engaging in. Meanwhile, the third sector is being locked out of the vast amounts of money that have been made available to it by the Government. Given these issues—I know that the Government are thinking about them—could the Minister tell us when the Government will bring forward the proposals on sentencing and reducing overcrowding in our prisons, so that we can have a new programme that will reduce reoffending and save the public some money?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the noble Lord is quite right that sentencing policy clearly has an impact on the numbers in prison. He is also right that we are looking at short-term sentencing in that context. I cannot say by what date we will have concluded our consideration of the matter but, clearly, it is important. However, it is also important that we should give confidence to the judiciary and to the public in general about the effectiveness of non-custodial sentences, so this cannot be looked at in isolation. It is necessary to look at the wider picture to arrive at a workable solution.

Further Developments in Discussions with the European Union under Article 50 of the Treaty on European Union

Lord Keen of Elie Excerpts

Monday 11th March 2019 Lords Chamber

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

My Lords, mere words can hardly do justice to my feelings on being invited to close yet another debate on Brexit, particularly so shortly after a debate that covered the same territory and since when, it is acknowledged, so little has changed. If there is one element of this debate that will stand out for me, it is the suggestion from the noble Baroness, Lady Hayter, that I would still be able to play the boy. The noble and learned Lord, Lord Goldsmith, sought to draw an analogy between the role of my right honourable and learned friend the Attorney-General and that of Godot, but of course it will be obvious to all in this Chamber that my right honourable and learned friend had far greater presence and substance on the EU stage than Godot ever managed in a two-act play.

That continues; the noble and learned Lord asked whether those negotiations have stalled, and the answer is most certainly no. My right honourable friend the Prime Minister is, as some have already discerned from the media, traveling to Strasbourg, where it is proposed she will meet with Mr Juncker at 9 pm Strasbourg time, which is 8 pm our time. That meeting is being held with a purpose, and it is being held because there continues to be dialogue between us and the European Union over the withdrawal agreement. I am sure noble Lords will appreciate that it is not for me at this time to anticipate the outcome of those discussions; nor is it for me to disclose the scope of those discussions at this time. However, it is sufficient perhaps to observe that such discussions will take place, and we look forward to their outcome once it becomes clear.

My noble friend Lord Hodgson of Astley Abbots made the clear and well-established point that, in the context of negotiation—which, as my noble friend Lord Finkelstein observed, requires more than one party when you are doing a deal—the tough issues are always sorted out at the 11th hour. Indeed, I have no doubt that the noble and learned Lord, Lord Goldsmith, will recall from his own experience in commercial litigation that, at least in the past, the most intractable and difficult disputes were very often finally resolved at the door of the court. These agreements almost invariably occur at the 11th hour.

In that context, I turn to the questions raised by the noble Lord, Lord Newby. He enumerated seven, but I respectfully observe that they tend to merge with each other. It is true that the Prime Minister is going to Strasbourg—indeed, she may already be there—and it is certainly true that she is taking with her a willingness to listen and to discuss further the resolution of the issues surrounding the withdrawal agreement. She is proceeding in a mood of optimism, as one would in the context of any such discussion. That will lead on tomorrow to the meaningful vote in the other place. It may be that further news will become available before any Motion is moved tomorrow, but that is the nature of negotiation, and that will be accommodated as and when it is required.

The noble and learned Lord, Lord Hope of Craighead, referred to the issue of delay; I concur with his and other noble Lords’ observations about the dangers of delay in the context of the ongoing process. It may be that there will be an amendable Motion in respect of exit day. However, a statutory instrument would also be required in the event of further changes to the exit date, assuming there was consent from the European Union, because of the definition of that term already contained in the 2018 Act. But it could be done. As for Little Jim, I am beginning to feel some sympathy for his condition. Slow he may have been devoured, but at least it was the end.

The noble Lord, Lord Pearson of Rannoch, and my noble friend Lord Saatchi suggested that negotiations be carried on with other parties in some other manner but, with great respect, Article 50 provides that we negotiate with the European Union, and the European Union has appointed the Commission to negotiate on its behalf. That is where we stand.

[Lord Pearson of Rannoch]

My Lords, will the Minister therefore comment on the Written Answer received from the Government, which states that the United Kingdom has resiled unilaterally from 52 treaties since 1988 and answer why we cannot do that now in the interests of continuing free trade with the people of Europe, the disappearance of the Irish problem and the peace and prosperity in front of us?

[Lord Keen of Elie]

There is a very material distinction between being able to resign from a treaty which makes provision for such a move and denunciation of a treaty. We have no intention of denouncing our obligations. We have proceeded under the mechanisms provided for by the Lisbon treaty—namely, Article 50.

The noble Baroness, Lady Quin, alluded to her background and experience in Europe, which I acknowledge, but I notice that we have seen the European Economic Community transmogrify through Maastricht and Lisbon into something quite distinct from that ever anticipated by its founders.

The noble Lord, Lord Thomas of Gresford, wondered why the DUP could not see the economic benefits of the backstop. I have no doubt that the DUP can recognise such economic benefit as there may be, but it sees more clearly the constitutional challenges that could be presented. It is that which has caused it concern.

My noble friend Lady Noakes observed that there was really nothing to debate at this stage. It appears to me that noble Lords have raised several issues for debate here, but of course we are left in anticipation of what may occur during the course of negotiations that are still to come.

The noble Lord, Lord Wigley, made it quite clear that, in his mind, all roads lead to Rome—or perhaps not Rome but a second referendum. I acknowledge his desire to go in that direction.

My noble friend the Duke of Wellington made a plea to all parties to compromise, and that is indeed what we seek to do here. He underlined how important it was that we should leave on 29 March with a deal. It is the Prime Minister’s wish that we should leave on that date with a deal.

The noble Lord, Lord Kerr of Kinlochard, in his inimitable fashion, observed that there were no new facts and that it was therefore necessary to deal with fantasy. I respond: it is never necessary to deal with fantasy and I would not intend engage with it at this stage.

The noble Lord, Lord Dobbs, asked about the meaning of a hard border. That is a border that includes any physical infrastructure with related checks and controls. It is not something that anyone desires for the island of Ireland.

The noble Lord, Lord Rooker, in alluding to the proposition that 16 year-olds should have the vote in a second referendum, observed that it was their future. I say, albeit with a degree of optimism, that I also regard it as my future. Therefore, I claim an equal interest in the outcome of the present negotiation, albeit not for necessarily the same length of time.

The noble Lord, Lord Bethell, alluded to the difficulty and dangers that would face us if we were found to breach the trust that has been placed in Parliament as a consequence of the referendum. I say no more of that.

The noble Lords, Lord Horam, Lord Armstrong and Lord Inglewood, referred to the proposition that we find ourselves in a mess. We find ourselves in a very challenging position because we are engaged in a deep and difficult negotiation in which we should expect the EU 27 to represent properly their interests, not ours. I acknowledge that, but I would observe that the darkest hour is often just before the dawn. As dawn rises in Strasbourg, we hope to see the outcome of the further, potentially final, negotiations that will bring the withdrawal agreement before the other place tomorrow.

The noble Baroness, Lady Crawley, alluded to EU minimum standards in the context of workers’ rights. I would point out that the United Kingdom stands well above those minimum standards in many areas, particularly in relation to maternity benefits, paternity benefits and elsewhere. Indeed, it has been reported that we stand second only to Sweden in the standards we maintain, so we are not driven by Europe on such standards. Indeed, I suggest that we drive Europe forward in many instances.

[Baroness Crawley]

I remind the Minister that if we look at the maternity leave directive back in the early 1990s, I am afraid that this country was brought kicking and screaming up to the minimum standards required.

--- Later in debate ---

[Lord Keen of Elie]

The birth of an idea often involves a degree of kicking and screaming. We arrived there.

The noble Lord, Lord Cavendish of Furness, asked about the claims by Sir Richard Dearlove and the noble and gallant Lord, Lord Guthrie, regarding defence and security. We challenge entirely their assertions in this area, which we suggest are neither correct nor well founded. The withdrawal agreement does not threaten the national security of the United Kingdom. It does not place control over aspects of our national security in foreign hands. The withdrawal agreement and political declaration in no way cut across our NATO membership, our bilateral relationships—including with the United States—or our Five Eyes intelligence co-operation. I hope that that will put his mind at rest.

I acknowledge the point made by the noble Lord, Lord Green of Deddington, that the control of our borders was a major issue in the referendum. I also note that concern over immigration has lessened in the recent past. That is to be commended but we are conscious of the position.

My noble friend Lord Cormack invited me to comment on his suggestion for a joint Grand Committee. I note his suggestion.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred to the observations of the noble Viscount, Lord Hailsham—I am sorry, the unnamed noble Lord—regarding the proposition to revoke Article 50 so that we could proceed to negotiate a different deal to withdraw. I concur entirely with the noble and learned Lord’s observations regarding the interpretation and application of the judgment in the Whiteman case. It does not appear to me—I believe I said this at the time of the previous debate—that we could proceed with that course of action.

In view of the time, I will conclude. The noble Baroness, Lady Ludford, began by saying that I am bereft of inspiration for novel thoughts. For once, we find ourselves in agreement. I am obliged to noble Lords for their contributions to the debate.

Motion agreed.

Islamic Ceremony: Civil Marriage Registration

Lord Keen of Elie Excerpts

Thursday 28th February 2019 Lords Chamber

[Baroness Cox]

To ask Her Majesty’s Government, following Resolution 2253 (2019) passed on 22 January by the Parliamentary Assembly of the Council of Europe, what plans they have to review the Marriage Act 1949 to make it a legal requirement for Muslim couples to civilly register their marriage before, or at the same time as, their Islamic ceremony.

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

My Lords, we recognise that the noble Baroness, Lady Cox, has brought a number of proposals for reform to the House. We are aware of Resolution 2253 from the Parliamentary Assembly of the Council of Europe. We remain committed to exploring the legal and practical challenges of limited reform relating to the law on marriage and religious weddings, as outlined in the Government’s recently published Integrated Communities Action Plan.

[Baroness Cox (CB)]

My Lords, I thank the Minister for his reply and his reference to the fact that I have introduced Private Member’s Bills for eight consecutive years in an attempt to highlight the suffering from gender discrimination in the application of sharia law of many Muslim women, many of whom have come to me desperate, destitute and even suicidal, with no rights following asymmetrical divorce inflicted by their husbands. Therefore, while I welcome Her Majesty’s Government’s commitment to explore the legal and practical challenges of marriage reform, I ask the Minister for an assurance that this legislation will be introduced as a matter of great urgency, as so many women are now suffering in this country in ways that would make the suffragettes turn in their graves.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we share the noble Baroness’s concern that some may feel compelled to accept decisions made informally, such as those made by religious councils. But marriage is a complex area of law and the issues will require careful consideration. We intend to explore those, as I indicated. Where sharia councils exist, for example, they must abide by the law. Where there is a conflict with national law and the court is asked to adjudicate, national law will always prevail.

[Lord Anderson of Swansea (Lab)]

My Lords, almost two-thirds of Muslim women married in the UK are not legally married and, as the Prime Minister has acknowledged, after divorce may be subject to penury, so what will the Government do? This is not discriminatory because the independent review suggests only that sharia courts also have a civil component, or at least there is a parallel civil ceremony, that puts Muslim women on the same basis as Jewish and Christian women. A year has passed since the independent review. Why will the Government not protect these very vulnerable Muslim women?

[Lord Keen of Elie]

My Lords, we are concerned that these people should be protected. The decision to go through with what is sometimes termed a nikah ceremony is widespread and unfortunately it does not give rise to a lawful marriage in England and Wales. But, as from April, we are taking forward detailed work to determine the best course of action to address such issues.

[Baroness Berridge (Con)]

My Lords, recent High Court decisions show that this is an issue that affects religious ceremonies generally, but such ceremonies are marriages under UK criminal law if they are forced marriages. However, a victim of a forced religious marriage can then be left destitute as there are no remedies that follow to get access to the matrimonial property—unfortunately, Parliament left that gap. So can my noble friend please outline when this injustice will be remedied, as it is certainly a barrier to victims of forced marriage coming forward if they face destitution because they cannot get hold of their rightful matrimonial property?

[Lord Keen of Elie]

My Lords, I must make it clear that the offence of forced marriage does not give legal recognition to marriages but is intended to protect victims from this abhorrent practice, regardless of the validity or otherwise of the marriage. Access to financial orders available on divorce depends on whether or not there has been a legally void or dissolved marriage and is governed by an entirely separate legal regime.

[Baroness Burt of Solihull (LD)]

My Lords, marriage is not just some romantic notion of happily ever after—after 25 years of marriage, I have learned that it is much more than that. It gives protections and rights that should be available to all couples regardless of whether or not they are religious. But these Muslim women, who believe that they are legally wed, may not find out that they do not have the protections of the law until far too late. That is why the requirement for a civil ceremony as well, as recommended by the Home Office’s own independent review last year, is so important. Is it not high time now for a fundamental review of the Marriage Act 1949 to recognise all forms of marriage in the 21st century?

[Lord Keen of Elie]

The general proposition that we should recognise all forms of marriage raises issues in itself. Our marriage law actually goes back to Lord Hardwicke’s Act of 1753 rather than just to 1949. It is a complex area that we will consider from the spring onwards and in which we will have to move with care. But we cannot simply recognise all informal types of marriage. We have a basic marriage law in this country based on the place in which it is celebrated and the fact that that place is open to the public and that it should be witnessed. We cannot move away from that. Indeed, to do so would create other issues and problems for ourselves.

[Lord Green of Deddington (CB)]

My Lords, we all recognise that this is a very complex issue, as the Minister has said. I pay tribute to the efforts of my noble friend Lady Cox, who has been on this case for years and years. Does the Minister not recognise that literally tens of thousands of women are in a very disadvantaged position? The Government produce one excuse after another but when will they actually take some effective action to end this outrageous situation?

[Lord Keen of Elie]

My Lords, there is a very real issue out there and it has to do with education and information as much as anything else. Many vulnerable people are not aware of what is required for a valid marriage ceremony in England and Wales. Therefore, we must address that issue—I accept that. But simply to move in the direction of recognising, for example, the nikah form of ceremony creates very real difficulties in itself. To take one example, how will you then police the issue of sham marriages?

[Lord Cormack (Con)]

My Lords, as one who has attended a number of meetings arranged by the noble Baroness and wishes to salute her courage and persistence, I ask my noble and learned friend on the Front Bench to try to inject a sense of urgency here. It is all very well saying, “We have considered it”, and “We will look at it”. We need action. It is a complicated subject but we need some real urgency here.

[Lord Keen of Elie]

My Lords, following the Government’s Integrated Communities Action Plan, we are going to take forward an analysis of policy objectives in this area and detailed work will be carried out.

Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Amendment) Regulations 2019

Lord Keen of Elie Excerpts

Wednesday 20th February 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 7 January be approved.

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

My Lords, the draft regulations before us today were laid on 7 January under the affirmative resolution procedure and relate to the contribution rates for members of two judicial pension schemes. The purpose of these draft regulations is to make provision to extend the current member contribution rates and earning thresholds in two different pension schemes until the next financial year. The two schemes are: the judicial pension scheme 2015, which was established by the Judicial Pensions Regulations 2015 following wider public service pension reforms; and the fee-paid judicial pension scheme 2017, which was established by the Judicial Pensions (Fee-Paid Judges) Regulations 2017, following the Supreme Court decision in 2013 in the case of O’Brien, and related court decisions.

The reason for extending the existing rates is that the current provision for member contribution rates will expire on 31 March 2019. Therefore, the draft regulations are needed to make an amendment to specify the member contribution rates which will apply for the next year: for the period from 1 April 2019 to 31 March 2020. The regulations will enable us to ensure the continuing operation of the schemes by deducting the appropriate member contributions for that year. Given that we propose to continue the same rates under the regulations, this amendment simply maintains the existing provision for a further year. This interim measure is required pending the completion of a broader process, which relates to the valuation of the judicial pension schemes. This process has been ongoing for a period of time, and the outcome of the valuation is yet to be determined.

Having referred to a link between the regulations and the broader valuations process, I should like to provide some brief background with regard to that matter. Following the reform of public service pension schemes in 2015, and as reflected in the current legislative framework, government departments are required to undertake valuations of their respective public service pension schemes every four years. This includes the Ministry of Justice in respect of the judicial pension schemes. The valuations of public service pension schemes do two things. One is to measure the cost of providing pension benefits to members of the schemes; and the second is to inform the future contribution rates paid into the schemes, by both the employer and members of the scheme.

Work has been under way on the first such valuations of public service pension schemes, and part of the initial stage is to analyse the provisional results produced for each respective scheme—which, as I mentioned, includes the judicial pension schemes. However, the current position is that the Government have recently announced a decision to pause part of the valuations of public service pension schemes. This is because the Government are seeking permission to appeal the Court of Appeal decision in the case of McCloud. Therefore, pausing the valuations is considered a prudent approach at this stage.

I now seek to explain the relevance of the Court of Appeal matter in McCloud. In December 2018, the Court of Appeal ruled that transitional protection offered to some individuals as part of the 2015 public service pension reforms amounted to unlawful discrimination—including the transitional protections in the judicial pension schemes. The issue relating to this transitional protection is that, as part of the 2015 reforms, most public servants and judges moved to a new career-average pension scheme. However, members within 10 years of their normal retirement age were protected and remained in the existing final salary schemes, together with members between 10 years and 13 years 6 months from their normal retirement age, who were given what was termed tapered protection, which is to remain in the existing scheme for a period of time before moving to the new scheme introduced by the reforms.

The Ministry of Justice has applied to the Supreme Court for permission to appeal the Court of Appeal’s ruling, and a decision on that application for permission is awaited. I understand that it is anticipated that it will be available in about July. As the legal process is ongoing and there is some uncertainty about the impact of the court ruling on wider pension reforms, it was considered prudent to pause that element of the valuation, which has the potential to affect member benefits and/or contribution rates in future. That element is referred to as the “cost control mechanism”, and is referred to in the Written Ministerial Statement issued by the Chief Secretary to the Treasury on 30 January this year.

I return to the draft regulations, which are the subject of this debate. There is a specific requirement to consult those affected by the draft regulations, as this proposal entails making a change to member contribution rates which are classed under the governing legislation as a protected element. Therefore, in accordance with the relevant requirements, we carried out a four-week consultation from 24 October to 21 November 2018. We consulted representative judicial organisations with a view to reaching agreement on the proposal. We received 23 responses to the consultation, of which the majority of respondents agreed with the proposal but two respondents did not. The two respondents who did not agree with the proposal also raised some points relating to wider pensions issues which were outside the scope of the consultation relating to the proposal for extending the current rates as an interim measure for a year. For example, they disagreed with the stepped approach for contribution rates and expressed preference for a flat rate to apply and for having a non-contributory scheme. We engaged further with the aim of reaching agreement, but unfortunately we were unable to secure the agreement of these two respondents.

In accordance with additional procedural requirements, we have also laid a report before Parliament setting out the rationale for this amendment. Furthermore, as the judicial pension schemes to which these regulations relate are UK wide, we have engaged with the devolved Administrations and kept them informed of progress. We will also continue to engage closely with them on further developments.

I conclude by reinforcing the point that the existing arrangements for member contribution rates will expire on 31 March 2019, in relation to the 2015 and 2017 judicial pension schemes. These draft regulations are therefore a necessary interim measure to continue the effective operation of these pension schemes, until a longer-term solution is put in place. Under this interim measure, the cost of accruing pension scheme benefits will remain the same for members of both schemes for the scheme year April 2019 to March 2020. If it is agreed that changes to member contribution rates—or other changes—are required in future, as a result of the valuation outcome, any changes that are agreed will be backdated until 1 April 2019, where it is appropriate to so do.

I hope noble Lords will agree that these regulations are an important and necessary interim measure to continue the arrangements for member contribution rates and for the effective operation of the judicial pension scheme. I beg to move.

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[Lord Judge (CB)]

My Lords, I had not intended to speak but perhaps I should. I declare an interest as having been Lord Chief Justice when the shocking new arrangements for the judicial pension were imposed on the judiciary unilaterally by the Government. There was consultation—of the kind that enables the Government to do exactly what they like—but it was imposed on the judiciary. There was a unilateral change to the pension arrangements under which a significant proportion of the judiciary were working if they were below a certain age and had not given so many years’ service. The basis on which they joined the judiciary, which was clearly understood, was changed. That represented a betrayal. It greatly damaged confidence in the whole idea of a successful practitioner—a barrister or solicitor—seeking judicial appointment. If the Government could unilaterally change the arrangements, there was no point. We still suffer the consequences of that. There is nothing wrong with the present measure we are considering, but the consequences of what happened between 2010 and 2014 are with us still.

If I may answer the point made by the noble Lord, Lord Adonis, about the arrangements that are currently before and have been before the courts, the judges trying those cases are not those who will have been affected by these dramatic changes. The various matters raised by the noble Lord, Lord Beith, and the noble Baroness, Lady Chakrabarti, are well known. There is no point using this opportunity to stand on a hobby-horse to repeat them, but they do not go away. That is an issue the ministry has to grapple with as soon as practicable.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions that have been made. I note the points made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge, and I acknowledge that pension issues have created very real issues about recruitment, particularly to the High Court Bench. That is something of which we are conscious and have in mind and under consideration going forward. The whole question of the terms and conditions on which we seek to appoint the judiciary is critical, and I acknowledge the need to ensure that we maintain a judiciary whose expertise and integrity are regarded as pre-eminent. The noble Lord, Lord Beith, touched on the value—if you can put it that way—of legal services in an export sense. It is estimated to be in the region of £4.5 billion, so it is a significant matter in that context alone; but of course, it has a much wider resonance and importance than that.

As the noble and learned Lord, Lord Judge, observed, those hearing this matter in the Supreme Court are not impacted by the transitional provisions we are concerned with in the McCloud case and the related Miller case, which is still to be heard. In any event, I remind the noble Lord, Lord Adonis, of the judicial oath and the confidence maintained in the integrity of our judiciary, which is entirely justified.

Regarding the potential cost of the McCloud decision, it is a matter of speculation. It does not refer just to judicial pensions; it is also relevant to firefighters.

[Lord Adonis]

My Lords, I am an avid reader of the Law Society Gazette, which says that £750 million has been provided for in the department’s own accounts as an insurance against the loss of this case. Is that correct?

[Lord Keen of Elie]

I am not in a position to comment on that figure, but if the noble Lord is concerned about it, I will write to him after seeing what the position is in the accounts, as I do not have them to hand.

The issue of the age of retirement has been debated, and we are conscious of it. Many noble and learned Lords who find themselves retired from the Bench are able to make a convincing contribution to the affairs of this House for many years after their retirement, and it seems in one sense unfortunate that we cannot harness that expertise on the Bench as well as off it.

This is a purely interim measure, pending the final valuation which will follow the decision in McCloud, and we will therefore be taking forward the question of contributions as soon as that valuation process is completed. There is a wider interest—expressed, for example by the noble Lord, Lord Beith—in the whole question of these pension reforms, and it is underlined by the points made by the noble and learned Lord, Lord Judge. We have a scheme, we are implementing it and taking it forward, but this is an interim measure to maintain contributions, not to increase them.

Motion agreed.