Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Keen of Elie Excerpts

Tuesday 29th January 2019 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019.

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

My Lords, this draft 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 for our citizens. If Parliament approves the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of these instruments until the end of that implementation period. Once a deal on our future relationship has been reached, we envisage that they would be revoked entirely.

Your Lordships will be aware that, as part of these preparations, the Government have published a series of technical notices to outline the implications of a no-deal exit for citizens and businesses. One of these, published on 13 September 2018, was titled Handling Civil Legal Cases that Involve EU Countries if There’s No Brexit Deal. It set out the implications of a no-deal exit for the rules on how to resolve cross-border disputes in civil and commercial cases.

The Secretary of State, the Ministry of Justice ministerial team and officials have had regular engagement with key stakeholders in the field of civil, commercial and family justice, including the Law Society of England and Wales, the Bar Council, through the Brexit Law Committee, and individuals. This has included discussions on the technical notice, to ensure that our policy proposals in respect of no deal provide the best outcome for citizens and businesses. The instruments we are discussing today are designed to implement the policy outlined in the technical notice. The Joint Committee on Statutory Instruments reviewed the statutory instrument and had no substantive comments.

This draft instrument makes changes to the rules in England and Wales, in Northern Ireland and in Scotland that determine which courts should have jurisdiction in cross-border civil and commercial cases involving courts in EU and relevant EFTA countries—that is, those party to the Lugano convention: Norway, Switzerland and Iceland. It also changes the rules on how to ensure that any judgments or decisions can be enforced across the EU and relevant EFTA states.

It may be helpful if I explain the current effect of EU law in this area. The current principal measure in relation to civil and commercial law is known as the Brussels Ia regulation, as it replaced the so-called Brussels I regulation. Denmark has a separate agreement with the other EU member states, based on Brussels Ia, to give Denmark access to the EU’s system of civil judicial co-operation, because it does not normally participate in EU justice and home affairs measures, pursuant to Protocol 22 of the Treaty on the Functioning of the European Union. There is also a separate but similar agreement, the 2007 Lugano convention, based on Brussels I, between the EU and Norway, Switzerland and Iceland. It also applies to Denmark. Brussels I, as distinct from Brussels Ia, remains of some continuing relevance because it applies in respect of actions commenced prior to 10 January 2015, but it is of limited relevance to the present issue.

The Brussels regime provides clear and reciprocal rules on jurisdiction in civil and commercial matters—that is, which court should hear a cross-border case. Its application is mandatory. There is no discretion for courts to act otherwise than in accordance with the regime. This means that if, for example, a UK consumer or business has a dispute with a party in another EU member state or a Lugano party, there are clear rules to follow to determine where the case should be heard. This negates the risks of parallel proceedings and more than one court hearing the same case.

There is almost automatic recognition and enforcement of judgments from one participating state in another. This means that if a business successfully sues a business in one participating state, it can enforce the resulting judgment where it needs to without going through costly and time-consuming additional processes. This is possible because all participating states must apply uniform rules of jurisdiction and can trust that jurisdiction was taken properly and appropriately.

The Brussels regime operates almost entirely on a reciprocal basis. Its effectiveness is founded on mutual co-operation between states. Countries respect the jurisdiction of each other’s courts and recognise and enforce each other’s judgments. However, with some limited exceptions, including consumer and employment cases, the Brussels rules do not apply if the defendant to the dispute is domiciled outside the EU. In such cases, EU member states and the Lugano parties apply their own national rules when dealing with cross-border matters.

What will change should we leave the EU without a deal? If the UK leaves without an agreement, the current EU regime for determining these matters will cease to apply to us. After such an exit, the reciprocity in the EU regime will no longer apply in relations between the EU member states and the UK, nor between the Lugano parties and the UK. Furthermore, there are no unilateral actions that the UK can take to compel the EU as a whole to continue to apply the reciprocal jurisdictional rules or to enforce judgments. Simply put, the rules under which we currently operate under the Brussels regime would cease to function effectively in the event of a no-deal exit.

For this reason, it is necessary to legislate now to provide clarity about how the UK will determine whether it has jurisdiction in a civil and commercial case and when UK courts will recognise and enforce judgments from EU countries. However, let me be absolutely clear: without a reciprocal agreement in this area, we cannot determine what rules the EU will apply. This will be down to member states’ own national laws.

As set out in the instrument before us, the Government’s response to this is, with limited exceptions, to revert to the rules on jurisdiction and on recognition and enforcement of judgments that currently apply to cross-border disputes where the Brussels regime does not apply—that is, for disputes involving parties from the UK on the one hand and countries outside the EU and the Lugano parties on the other. This instrument is not creating new policy but transitioning to a well-developed and understood set of rules that provide an effective framework for UK courts to work with and take into account the lack of reciprocity in this area.

There are a few exceptions to this general approach. Importantly, the rules of the Hague Convention on Choice of Court Agreements 2005 will continue to apply, as the UK is acceding to it as a contracting state. This is being brought into UK law post-EU exit by a separate SI, which has been subject to the negative procedure—that is, the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018. Broadly speaking, this means that the courts of a part of the UK will take jurisdiction whenever a valid choice of court agreement to which the convention applies has been made and will readily recognise and enforce a foreign judgment from a foreign court validly selected under such an agreement. Courts of other contracting states to that convention will equally recognise and enforce a judgment from a UK court to which the convention applies.

The EU was a signatory to the 2005 Hague convention on behalf of all members of the EU. It is therefore necessary that we should become a signatory to that convention as an individual state on exit. The application to do so was made on 28 December 2018. It will become effective under the terms of the convention as of 1 April this year.

Secondly, we have sought where we can to maintain jurisdictional protections for UK consumers and employees contained in the Brussels regime. These rules are not restricted to EU-domiciled defendants, so we can retain to a large degree the consumer and employee-friendly approach of the Brussels regime while restating them in a manner specific to UK-based consumers and employees. This largely obviates the need for a consumer or employee to sue abroad in these cases, with the expense and difficulty that brings.

This instrument is necessary to fix the statute book in the event of a no-deal exit. We have assessed its impact and published a full impact assessment. Broadly, we have concluded that although in certain respects the common law may operate less efficiently than the existing Brussels regime to which the UK is party as a result of EU membership, only negligible costs would arise from this SI, relative to the alternative of leaving legislation on the statute book that ceases to operate effectively in the absence of reciprocity after the UK leaves the EU.

[Lord Adonis (Lab)]

My Lords—

[Lord Keen of Elie]

I am not taking interventions during the opening speech. It is the Government’s view that removing deficient retained EU law and associated domestic legislation from domestic law will clarify the rules that apply to determine jurisdiction, recognition and the enforcement of judgments post exit. This has the benefit of protecting litigants from unnecessary expense and making UK legislation more transparent, therefore protecting its reputation. This will also ensure that the same rules apply to cross-border matters involving EU and non-EU countries.

There will be deficiencies in retained EU law, which implements the instruments of the Brussels regime, due to a lack of reciprocity. That will become obvious if we leave the EU without a deal. This SI fixes those deficiencies and establishes a practicable set of rules for dealing with cross-border disputes in civil and commercial matters in such a scenario.

[Lord Adonis]

My Lords, before the Minister sits down—

[Lord Keen of Elie]

I have already sat down.

[Lord Adonis]

The Minister said that he would not take interventions.

[Lord Keen of Elie]

That is correct.

[Lord Adonis]

That is extremely disrespectful to the Committee, if I may say so, because now there is no other way for us to ask the Minister questions before he responds at the end of the entire debate—and we will have no means to come back on his statements at that point because the Question will be put at the end.

[Lord Keen of Elie]

Just to be clear, I have already sat down.

[Lord Adonis]

I am happy to take an intervention from the noble and learned Lord, even though he was not prepared to take one from me. I will speak later in the debate but I just want to put on record that I find his actions extremely disrespectful to the Committee. That alone would lead me to wish to negative the instrument, because the Minister is not subjecting himself to the proper process of interrogation and answering questions on the regulations. It is immensely disrespectful and the first time that a Minister has come to a Grand Committee and not been prepared to answer questions in the normal way.

--- Later in debate ---

[Lord Adonis]

So why does it say that they are not applicable? These issues are significant.

The final issue in the debate, to which I hope the noble and learned Lord will respond, was raised by my noble friend Lord Beecham and other noble Lords. It is about the losses to this country of not being part of the European Judicial Network. My understanding is that there is nothing statutory about the network. Am I wrong? Is the network a formal institution of the European Union? If it is an informal body, and if belonging to it brings us great benefits, why can we not continue to be members of it even after we leave the European Union? Indeed, to the lay man, being part of the network would seem positively beneficial because, presumably, the network co-ordinates and promotes joint understandings. If we will be separate jurisdictions, with neither wanting, as far as possible, to operate in parallel, is that not all the more reason for us to be part of the network and not seek to leave it? If we crash out with no deal and all losses as set out or implied in the Explanatory Memorandum, why we are not seeking to remain part of the European Judicial Network? Might it be in the country’s best interests for the Government to seek to keep us in the network?

[Lord Keen of Elie]

My Lords, this Parliament decided that the United Kingdom will leave the European Union on 29 March this year. That is the determination that has been made. That date has been set in law. The Executive must respect the law as determined by Parliament and respond responsibly to it, as laid down by Parliament. Therefore, they must address the implications of us leaving on 29 March if, as at present, we do not have a withdrawal agreement concluded with the European Union. That is what this statutory instrument seeks to address.

In that context, we must address the difference between leaving on 29 March and doing nothing about the existing state of the law—with regard to judicial recognition, identity of choice of court and law, the enforcement of judgment and so on—and doing something about it. I quite understand the observations of the noble Lord, Lord Marks, about the benefits of our being in the Brussels Ia system, but we can be in the Brussels regime only as a member of the European Union. According to Parliament and the law it made, we will cease to be a member of the European Union on 29 March 2019. Although the Brussels regime can be dated back to 1968, it was in that context a regime for existing European Union members and not open to non-members, to clarify a point made by the noble Lord, Lord Adonis.

The first point is that we have to consider the impact of us leaving on the date I have mentioned if we make no change to the existing law, and the impact if we change the existing law. I quite understand the point repeatedly made, that in many ways we would prefer the cake analogy: we would like to have our cake and eat it. We would like to remain within the regime, even if, as Parliament has determined as a matter of law, we are leaving on 29 March 2019. But we cannot have it, because Parliament has made that determination. Many may regret it now, and many may regret it later, but that is the law as determined by this Parliament, and we have to accept that. We can seek to change the law—of course we can—and no doubt there are many who may, even now, seek to change it. However, the law is as determined by this Parliament.

[Lord Marks of Henley-on-Thames]

I hope that the noble and learned Lord will at least address my question on what consideration has been given to applying to join the Brussels regime entirely separately. Although he says that it is a creature of the European Union, and by and large of course it is, there do not seem to be insuperable obstacles to negotiating reciprocity around the context of the Brussels regime but outside the European Union.

[Lord Keen of Elie]

I take the noble Lord’s point when he says “negotiate”; that is the whole point. If he looks at the political declaration, there is a reference to the desire of all parties to negotiate on this among other issues so that we may be part of a regime perhaps similar to Lugano. Let us be clear: we have not only applied to become an individual signatory to Hague 2005, which involves reciprocity between the convention members and ourselves—although I say, quite candidly, that it is not as perfect as Brussels Ia, being more akin to Brussels I. That is why it is in many ways a second best to that extent, but that is as far as we can go. We have also applied to the council of the Lugano convention to become a party to the Lugano convention—a point raised by the noble Lord, Lord Beith. That will of course require the consent of the EFTA parties and of the EU, and it will be subject to negotiation, but we hope also to be a member of the Lugano convention.

If noble Lords have regard to the impact assessment, they will see that under option two we looked at simply leaving the UK law as it is—in other words, embracing all those relevant terms of Brussels Ia without any right to reciprocity from the EU 27. The difficulty there is that in the absence of reciprocity, people would not know what they were going to get from those provisions. Furthermore, it would raise two obvious difficulties. First, corporations, companies and associations within Europe could secure a decree there and automatically seek to secure enforcement in the UK, but companies, corporations and associations in the UK that secured a judgment from a UK court could not expect to enforce it in the EU 27 countries. That is why I stressed the concept of reciprocity. Yes, we want to negotiate and to secure reciprocity, but until we do, we have to make sure that the statute book is in some sort of order for a no-deal exit—which, as far as I am aware, no one truly wishes for.

Secondly, if we embrace the Brussels Ia regime without being a member of the EU, we would be discriminating between the EU 27 jurisdiction and all the other third-party countries. We would be giving some benefits to the EU 27 under Brussels Ia, albeit without reciprocity, but we would not be giving the same benefit to third-party countries such as the United States, India and China, and Commonwealth countries such as Australia and New Zealand. That raises real issues about discrimination in the context of wider issues on services and so on.

[Lord Beith]

I thank the Minister for explaining the Government’s objections to option two. It might have been a good thing if he had written the impact assessment and developed those points. I shall still disagree with him on some other matters, including the fundamental issue here, but he has clarified that very helpfully.

[Lord Keen of Elie]

I am obliged to the noble Lord. I know the noble Lord, Lord Adonis, made much of this, but that is why the impact assessment is between the statute book as it is upon exit and the statute book as it would be under the instrument upon exit, because Parliament has made the law and Parliament is determined to exit on 29 March. If that is reversed, so be it, but that is where we are and that is the impact that we have to properly address in this context.

On the wider point made by the noble Lord, Lord Marks, about the benefits of being in the EU and within Brussels Ia, I am not going to seek to disagree with him. Brussels Ia was a marked improvement on Hague 2005, for example; we all know that. Therefore, in many senses, exit from the EU without a deal is unattractive in the context of the provision of legal services in the UK, as indeed are the implications of that for those who have to engage those services and have recourse to the courts. No one is denying that either, but these are the consequences of the law that Parliament has made in these circumstances.

The noble Baroness, Lady McIntosh, asked what steps are being taken with regard to reciprocity. As I say, we are applying to become signatories to the Hague convention 2005, which will give us certain reciprocal rights. We are applying to the council of the Lugano convention to become a party to that, which will give us reciprocal rights with the EFTA countries. In addition, we are intent upon negotiating around the whole issue of judicial co-operation in future, which is why it features in the political declaration. At this stage we cannot demand reciprocity from the EU 27 and they are certainly not prepared to offer it at this stage. At a very early point there were discussions about, for example, the recognition of legal qualifications and mutual issues of that kind, and the EU made it very clear at that stage that that was a discussion for another day. That is where we are.

Coming on to a further point made by the noble Lord, Lord Beith, about what happens to the SI, if we have an agreement on the terms of the present withdrawal agreement then we go into a two-year implementation period where we will remain a part of the Brussels Ia regime, so the instrument itself will essentially be suspended by the withdrawal agreement Bill. However, it will not be completely done away with because at the end of the implementation period—two, three or four years, whatever it might be—we will then have to decide whether or not we have achieved agreement with the EU 27 on future judicial co-operation. That might be on essentially identical terms to what we have now, in which case we will not need the instrument at all, or it may be that we cannot achieve agreement at that stage, in which event we will need to revive the instrument in order to bring the statute book into proper order. That is why I have referred to it as being “deferred” in that context; it is deferred for the implementation period, whatever that period might ultimately turn out to be. That is where we are on that.

On the issue of forum non conveniens, which the noble and learned Lord, Lord Hope, alluded to, that has always been a part of our common law because we apply it in the context of third party countries outwith the Brussels Ia convention. The noble and learned Lord may recollect the litigations that took place around the Pan Am/Lockerbie case and the attempts to take it further than just applying the doctrine of forum non conveniens but rather to apply the issue of interdict against the raising of proceedings in a third party country, which is attendant to the doctrine of forum non conveniens—although I recall being in a Texas court where the judge asked it to be pointed out to me that in Texas they do not have forum non conveniens, and we have to accept that there are some jurisdictions of that ilk. Nevertheless, the courts will fall back upon these common-law concepts which have not been done away with but have not applied in the context of the Brussels Ia regime for the reasons that the noble and learned Lord very carefully pointed out.

The European Judicial Network is a very fine body but it was set up in order that there could be engagement across the EU 28 about the operation of the regime that at the moment we are referring to as Brussels Ia, but it also looks at Brussels IIa and other issues. It concerns the operation of that regime and how it may be improved. For example, it contributes to how you move from Brussels I to Brussels Ia. If we are not part of the regime, we are not part of the European Judicial Network and we really have no part to play in that. But again if, going forward, we are able to achieve a negotiated position with the EU 27 where we are, if you like, semi-detached from Brussels Ia and the other Brussels regime, no doubt they will consider allowing us a seat perhaps not at the table but at least in the room of the judicial network in order that we can contribute to it. However, that too is a negotiation for another day. It is not what this instrument is addressing and not what it is intended to do. So, with all due respect to the noble Lord, Lord Adonis, there is no elephant in the room. Parliament removed the elephant when it decided that, as a matter of law, we would leave on 29 March 2019. The Executive have to address that point in order to put the statute book in proper order.

Child Sexual Exploitation: Grooming Gangs

Lord Keen of Elie Excerpts

Thursday 24th January 2019 Lords Chamber

[Baroness Cox]

To ask Her Majesty’s Government what progress they have made with the prosecution of grooming gangs in Rotherham and elsewhere; and what assistance they have offered to victims and their families.

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

My Lords, there are a number of criminal investigations currently ongoing in Rotherham and other parts of the country that have led to prosecutions resulting in convictions. Supporting victims requires a multiagency effort to protect them and help rebuild their lives. The Government provide funding for victims of child sexual abuse and exploitation, and additional funding has been provided to agencies in Rotherham.

[Baroness Cox (CB)]

My Lords, I thank the Minister for his reply. Is he aware that I had the painful privilege of becoming friends with a number of young women who have suffered such atrocities, including Caitlin Spencer—a pseudonym—whose life story was published in a must-read book, Please, Let Me Go, in which she describes how from the age of 14 she was groomed, sexually exploited and trafficked around this country by gangs of men. I have placed a copy in your Lordships’ Library. Given that Caitlin still sees her abusers driving their taxis with impunity and that other victims similarly see perpetrators living freely and intimidating them, what more will the Government do to bring those perpetrators to justice?

[Lord Keen of Elie]

My Lords, Operation Stovewood is now operating in respect of Rotherham. To support women such as Caitlin, the National Crime Agency has a dedicated team of independent sexual violence advisers working with investigators and service providers in Rotherham to create a bespoke survivor pathway for victims and their families. The Department for Education is providing additional funding of up to £2 million to children’s social care. The Ministry of Justice has also provided £1.6 million to the police and crime commissioner for the commissioning of local victims’ services, and additional funding for specialist support.

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

Can the Minister say a little more about what lessons may have been learned to help victims of grooming through the prosecution process? Are any further steps planned to help support victims through those very difficult cases?

[Lord Keen of Elie]

My Lords, Operation Stovewood is a victim-focused investigation carried out under a strategy known as the survivor pathway, with a dedicated team of independent sexual violence advisers. In addition, when taking forward the consideration of prosecution, the CPS has regard to the victims’ code and to guidance on how it should approach and deal with victims in that context. Over and above that, we have the statutory provisions of Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999, whereby victims and other witnesses who are vulnerable or potentially intimidated can have their evidence taken by video recording and be cross-examined via a television link.

[Lord Pickles (Con)]

My Lords, this whole sorry business led to the collapse of the political and official authority in Rotherham, and that was one reason why, during my time as Secretary of State for Communities and Local Government, I put in commissioners. Does my noble and learned friend agree that we need to look beyond the immediate victims and towards future victims, and consider the conditions that have been created, which can be addressed only by dealing with particularly vulnerable families? Will he tell the House what the Government are doing, in co-operation with the local authority and voluntary organisations in Rotherham, to increase the esteem of young girls and to find ways of dealing with the root cause of this problem?

[Lord Keen of Elie]

My noble friend is entirely right: we need to look not only at the consequences of these abhorrent crimes but at the causes if we are to prevent further victims emerging. In that context, the Home Office is taking forward work on a number of fronts to improve our understanding of group-based child sexual exploitation and how it manifests in different ways throughout the country. Therefore, steps are being taken at both national and local agency level to see what can be done not only to protect vulnerable children in this context but to deter and indeed disrupt persons becoming engaged in such devastating crimes.

[Lord Blunkett (Lab)]

My Lords, I commend the comments that have already been made in the House this morning, and I commend the work of the police and crime commissioner, the chief constable and the MP for Rotherham, Sarah Champion. However, perhaps I may raise a small issue that follows through on the point raised earlier by the noble Baroness, Lady Cox. Will the Minister talk to his colleagues about taxi drivers registering in one local authority area but operating in another? That causes real difficulties in clamping down.

[Lord Keen of Elie]

The noble Lord makes a valid observation. There has been an association between these abhorrent crimes and certain areas such as minicab driving. Officials and Ministers are considering the registration of minicab drivers in one area in order that they can then operate in another.

[Lord Laming (CB)]

My Lords, will the Minister use his influence to incorporate the position of children in public care who were exposed to such dreadful experiences? When the state has parental responsibility for these vulnerable young children, it has to make sure that it knows where they are and what they are doing. Is it not dreadful that these children were exposed to such dangers and that apparently, it was not known where they were?

[Lord Keen of Elie]

My Lords, I entirely accept the noble Lord’s observation. Clearly, there were failures in many areas that left those children exposed to these abhorrent crimes. That is one reason why Operation Stovewood, directed by the National Crime Agency, has taken over investigations in, for example, Rotherham, where it is looking at the exploitation of children for purposes of sexual abuse from 1997 to 2013. Other reports have been made but further work needs to be done.

[Lord Campbell-Savours (Lab)]

My Lords, in the case of claims arising from sexual offences, is it not worth transferring funds from the criminal injuries compensation scheme so that they can be spent on counselling victims? That happens in Germany, which has a far more substantial budget to spend in that regard.

[Lord Keen of Elie]

As the noble Lord may be aware, changes to the criminal injuries compensation scheme have been considered and addressed in the context of victims of child sexual abuse. So some changes have been made, but I cannot indicate that further material changes will be made to the scheme at this time.

Central Courts IT System

Lord Keen of Elie Excerpts

Wednesday 23rd January 2019 Lords Chamber

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

My Lords, with the leave of the House I shall repeat in the form of a Statement an Answer given in the other place by my honourable friend the Parliamentary Under-Secretary at the Ministry of Justice. The Statement is as follows:

“I am grateful for the opportunity to update the House on the IT issues facing the Ministry of Justice over recent days. I start by apologising to those who have been affected by the intermittent disruption, which was caused by an infrastructure failure in our supplier’s data centre. While services have continued to operate and court hearings have continued, we know how frustrating this is for everyone.

The issue has been that some of our staff in courts and tribunals, the Legal Aid Agency, probation and the Ministry of Justice headquarters have been unable to log on to their computers, but we have contingency plans in place to make sure that trials can go ahead as planned. The Prison Service has not been impacted and—to clarify incorrect reporting—criminals have not gone free as a result. We have been working very closely with our suppliers, Atos and Microsoft, to get all our systems working again, and yesterday had restored services to 180 court sites, including the largest sites.

Today, 90% of staff have working computer systems. Work continues to restore services, and we expect the remainder of court sites to be fully operational by the time that they open tomorrow morning. We are very disappointed that our suppliers have not yet been able to resolve the network problems in full. This afternoon the Permanent Secretary, Sir Richard Heaton, will meet the chief executive of Atos and write personally to all members of the judiciary.

I am very grateful to the staff who have been working tirelessly and around the clock, alongside our suppliers, to resolve these issues”.

[Lord Beecham (Lab)]

My Lords, last May the National Audit Office published a damning report on the Ministry of Justice’s four year-old £280 million IT programme. In the light of the latest fiascos affecting the probation service and the entire criminal justice email system, would the Minister rank the department’s performance in these areas as better or worse than that of Chris Grayling’s recent award of a ferry contract to a company with no ships, or the shameful record of the Home Office over the Windrush debacle?

[Lord Keen of Elie]

I rather fear that the noble Lord’s inquiry has taken sail. The position is that the issue that arose recently had nothing whatever to do with the development of the common platform system for the Ministry of Justice, which is still in its testing phase. It was entirely unaffected by the issue that arose, which was in fact attributable to the corruption of a routing server that has now been replaced.

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

My Lords, the Answer repeated by the Minister is welcome, but expressions of frustration and an apology are, frankly, not enough. The reported consequences of this IT failure include: the adjournment and collapse of criminal trials; lawyers and litigants unable to access court documents; probation workers unable to provide courts with pre-sentence information; and even the farce of courts asking driving offenders to check their own DVLA records for past offences. The chair of the Criminal Bar Association, Chris Henley QC, describes the system as being “on its knees”.

We appreciate that the MoJ needs time to understand these failures, but they come at a time when the department is rightly further digitalising courts and tribunals to increase efficiency and save time and money. Will the Minister promise us an urgent, full and detailed inquiry to cover what has gone wrong, any failures of contract management within the MoJ, other weaknesses in the IT system, what updating and replacement is necessary and what it will all cost?

[Lord Keen of Elie]

My Lords, the reported effects narrated by the noble Lord are not accurate; let us be clear about that. There is no evidence of any cases being adjourned in either courts or tribunals with respect to this issue. In addition, it is not true that defendants have had to do their own DVLA checks. Furthermore, the probation service was affected by the outage but no offender appointments were missed, and the service reverted to paper processes where necessary. The IT systems are back up and working as of this morning with respect to the probation service. There was no impact on the Prison Service, which is in fact dependent on entirely separate computer system.

The cause of the outage was identified as a routing server that had become corrupted, and that has been replaced. It fell within one of our contractors’ systems and, as I indicated earlier, we are going to be speaking to our contractors with regard to that matter. At this stage we do not intend to institute the sort of inquiry that the noble Lord alluded to.

[Lord Morris of Aberavon (Lab)]

My Lords, is it correct that thousands of criminal cases in the courts have been disrupted? The National Audit Office criticised the delay in the IT system installation and said that the objectives would not be reached on time and on budget. Given this warning, are there any penalties in the contractual arrangements between the company and HMG?

[Lord Keen of Elie]

With respect to the noble and learned Lord, it is important to distinguish between two entirely separate systems: the existing system, which suffered the corruption of the routing server, and the proposed new common platform system which is in its testing phase. That is entirely unrelated to the existing system, but is of course connected to the modernisation of the courts system and the case management system, which has been allocated considerable funding at the present time.

With regard to the existing contracts, we are engaging with the provider over this issue. We regret the outage that occurred. Back-up systems did operate. Certainly, I am not aware of thousands of criminal cases being disrupted. I am advised that there is no evidence of cases being adjourned due to the IT issue.

[Lord McNally (LD)]

My Lords, it a fairly easy strike to suggest, as the Labour Front Bench did, that this was all the fault of Chris Grayling. I was also the Minister of State in the Ministry of Justice when we set out to reform court IT. Throughout my political life we have had, periodically, Ministers coming to explain some disaster in an IT system. What I wonder is: what happens next? As he rightly said, the comprehensive view of reform is not affected by this particular malfunction, but I do remember visiting courts and asking, “Have you got any problems with your IT system?” and they would say, “Well, our fax system doesn’t work”. This was long after the rest of the world had sent their fax systems to museums. The original idea is still valid: to invest in technology to make our court systems efficient. Where does the buck stop? I understood that the Cabinet Office also has responsibility for oversight of the efficiency of bringing in these new systems. Who is overseeing this? Who is keeping their eye on it? Or will we wait for another few years, and somebody coming along to explain why that system has not worked.

[Lord Keen of Elie]

I am obliged to the noble Lord for his observations, drawing upon his own experiences in the ministry when we began the introduction of the common platform system. Clearly, we want to move on to that platform fully and as soon as possible. We have already seen some success in the digital approach that has been taken to some forms of casework—such as debt actions and undefended divorce actions—and we want to roll that out further. With regard to the existing system: it is not perfect. If it was perfect, we would not be seeking to replace it. There are back-ups, but they are of limited operability because of the availability of wi-fi in courts in circumstances where it has not been possible for those working there to access their desktop computers. That has been the case in some courts recently, and in the ministry itself, because of this particular problem.

At the end of the day, the Ministry of Justice must consider the effectiveness and efficiency of the computer system that it relies upon, not only as a ministry but also for its attendant agencies and arm’s-length bodies. We accept that we have a responsibility in that matter.

[Lord Judd (Lab)]

My Lords, yesterday, in his evidence to the Justice Sub-Committee, the Home Secretary was emphatic that the registration of EU people living in Britain will be dependent entirely on IT and that there are no plans whatever to give people documentary evidence of what has been granted. With the vulnerability of IT again being illustrated today, I wonder whether we could have an undertaking that Ministers will look again at this approach.

[Lord Keen of Elie]

I thank the noble Lord for his question. I do not believe that it is for me to gainsay the Home Secretary’s evidence before the Justice Sub-Committee, so I am afraid I am not in a position to commit to any alternative approach on the matter at present.

[Lord Pannick (CB)]

My Lords, in preparing this Statement, have Ministers and their officials spoken to judges and lawyers, or only to IT consultants?

[Lord Keen of Elie]

My Lords, I was not involved directly in the preparation of this Statement. I was invited to repeat it in this House on the basis of information given to me. I cannot directly answer the question of who was consulted in the preparation of the Statement itself. If the noble Lord wishes I will write to him on the point—but if he has no desire for me to do so I will not.

[Lord Scriven (LD)]

My Lords, less than three years ago there was a whole-Whitehall review of the £500 million contracts given to Atos for government IT systems. This is another potential catastrophe with an IT system that Atos has implemented in government. In the light of that, what government-wide review will now be done of Atos’s ability to provide IT services for government on such a scale?

[Lord Keen of Elie]

My Lords, this issue arose in the context not of the implementation of an IT system but of an existing system, in particular the corruption of part of the hardware, namely a routing server, which has now been replaced. Given that that has been identified and rectified, we would not contemplate launching the form of inquiry indicated by the noble Lord.

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

Lord Keen of Elie Excerpts

Tuesday 15th January 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Lord Thomas of Gresford (LD)]

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

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


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

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


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

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

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

[Lord Beecham (Lab)]

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

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

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


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

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

[Lord Keen of Elie]

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

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

[Lord Thomas of Gresford]

I was asking what the exceptional cases are.

[Lord Keen of Elie]

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

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

Motion agreed.

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

Lord Keen of Elie Excerpts

Tuesday 15th January 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

[Lord Adonis (Lab)]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering (Con)]

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

[Lord Keen of Elie]

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

[Baroness Kingsmill (Lab)]

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

[Lord Keen of Elie]

I have already said that.

[Baroness Kingsmill]

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

[Lord Keen of Elie]

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

[Baroness Kingsmill]

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

[Lord Keen of Elie]

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

[Lord Hope of Craighead (CB)]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering]

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

[Lord Keen of Elie]

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

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

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

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


What is the position in relation to Scotland?

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock]

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

[Lord Keen of Elie]

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

[Lord Beith (LD)]

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

[Lord Keen of Elie]

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

[Baroness Kingsmill]

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

[Lord Keen of Elie]

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

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

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

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

[Lord Adonis]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering]

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

[Lord Keen of Elie]

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

[Baroness McIntosh of Pickering]

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

[Lord Keen of Elie]

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

[Lord Thomas of Gresford (LD)]

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

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

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

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

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

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

--- Later in debate ---

[Lord Adonis]

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

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

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

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

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

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

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

[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock]

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

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

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

Motion agreed.

Voyeurism (Offences) (No. 2) Bill

Lord Keen of Elie Excerpts

3rd reading (Hansard): House of Lords
Tuesday 15th January 2019 Lords Chamber

[Lord Keen of Elie]

That the Bill do now pass.

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

I beg to move that the Bill do now pass.

[Baroness Chakrabarti (Lab)]

My Lords, at the risk of my complete and utter humiliation, I rise in these difficult and fractious times to celebrate a moment of genuine positivity, collaboration and leadership in this place and beyond it. I pay tribute to the campaigner Gina Martin, whose original indignity was converted into a powerful campaign to do something important that we can all agree on. I also pay tribute to her lawyer, Ryan Whelan, for that campaigning partnership and to parliamentarians on all sides of both Houses who made it possible—even at the expense of rivalries and through self-censoring—to allow a speedy and successful passage of this Bill. I particularly thank the government Bill team, the Minister and his colleague, the noble Baroness, Lady Vere. This was good work and very well done.

[Lord Keen of Elie]

I am obliged to the noble Baroness, Lady Chakrabarti, for her observations. I, too, extend my thanks to all who were engaged in bringing this Bill to fruition. I thank in particular the Bill team, which did so much work to ensure that the passage of this Bill was as simple and swift as we would all wish.

Bill passed.

Personal Statement

Lord Keen of Elie Excerpts

Tuesday 15th January 2019 Lords Chamber

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

My Lords, with the leave of the House, I would like to make a short statement to correct something I said in closing last night’s debate. I attributed to my noble friend Lord Forsyth of Drumlean some comments which were in fact made by my noble friend Lord Lamont of Lerwick. I have apologised to my noble friend Lord Forsyth of Drumlean, and I am grateful for the opportunity to correct the record.

Brexit: Withdrawal Agreement and Political Declaration

Lord Keen of Elie Excerpts

Monday 14th January 2019 Lords Chamber

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

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

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

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

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

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

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

[Baroness Ludford]

Legitimate and democratic means.

[Lord Keen of Elie]

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

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

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

[Baroness Chakrabarti (Lab)]

That is a good idea.

[Lord Keen of Elie]

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

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

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

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

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

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

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

[Lord Forsyth of Drumlean (Con)]

I suggested no such thing.

[Lord Keen of Elie]

I apologise, but that was my understanding.

[The Archbishop of Canterbury]

That would be above my pay grade.

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

Can I come on—

[Noble Lords]

Oh!

[Lord Keen of Elie]

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

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

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

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

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

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

Motion agreed.

Prisoners: Imprisonment for Public Protection Sentences

Lord Keen of Elie Excerpts

Thursday 20th December 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

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

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

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

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

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

[Lord Keen of Elie]

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

[Lord Blunkett (Lab)]

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

[Lord Keen of Elie]

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

[Lord Reid of Cardowan (Lab)]

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

[Lord Keen of Elie]

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

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

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

[Lord Keen of Elie]

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

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

Non-Contentious Probate (Fees) Order 2018

Lord Keen of Elie Excerpts

Tuesday 18th December 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

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

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

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

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

[Lord Beecham]

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

[Lord Keen of Elie]

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

[Lord Marks of Henley-on-Thames]

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

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

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


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

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

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