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.

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[Lord Keen of Elie]

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

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

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

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

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

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

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

[Lord Beecham]

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

[Lord Keen of Elie]

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

[Lord Marks of Henley-on-Thames]

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

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

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


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

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

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

European Union (Withdrawal) Act 2018

Lord Keen of Elie Excerpts

Tuesday 11th December 2018 Lords Chamber

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

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

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

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

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

[Baroness Chakrabarti (Lab)]

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

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

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

[Lord Keen of Elie]

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

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

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

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

[Lord Keen of Elie]

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

[Lord Foulkes of Cumnock (Lab)]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Harris of Haringey (Lab)]

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

[Lord Keen of Elie]

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

[Lord Wallace of Saltaire (LD)]

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

[Lord Keen of Elie]

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

[Lord Hain (Lab)]

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

[Lord Keen of Elie]

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

[Lord Pearson of Rannoch (UKIP)]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Watts (Lab)]

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

[Lord Keen of Elie]

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

[Lord Hamilton of Epsom (Con)]

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

[Lord Keen of Elie]

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

[Lord Judd (Lab)]

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

[Lord Keen of Elie]

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

Brexit: Legal Position of Withdrawal Agreement

Lord Keen of Elie Excerpts

Monday 3rd December 2018 Lords Chamber

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Lord Thomas of Gresford (LD)]

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

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

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

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


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

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

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

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

[Lord Morris of Aberavon]

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

[Lord Keen of Elie]

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

[Lord King of Bridgwater (Con)]

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

[Lord Keen of Elie]

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

[Lord Butler of Brockwell (CB)]

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

[Lord Keen of Elie]

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

[Lord Campbell of Pittenweem (LD)]

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

[Lord Keen of Elie]

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

[Baroness Bryan of Partick (Lab)]

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

“people of Scotland needed the truth”.

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

[Lord Keen of Elie]

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

[Lord Mackay of Clashfern (Con)]

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

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

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Lord Kerr of Kinlochard (CB)]

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

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

[Lord Keen of Elie]

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

[Lord McCrea of Magherafelt and Cookstown (DUP)]

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

[Lord Keen of Elie]

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

[Lord Goldsmith (Lab)]

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

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

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

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

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

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

[Lord Keen of Elie]

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

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

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

[Lord Howard of Lympne (Con)]

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

[Lord Keen of Elie]

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

Brexit: Attorney-General’s Advice

Lord Keen of Elie Excerpts

Thursday 29th November 2018 Lords Chamber

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

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

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

[Baroness Chakrabarti (Lab)]

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

[Lord Keen of Elie]

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

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

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

[Lord Bridges of Headley (Con)]

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

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

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

[Lord Keen of Elie]

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

[Lord Campbell-Savours (Lab)]

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

[Lord Keen of Elie]

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

[Lord Bridges of Headley]

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

[Lord Keen of Elie]

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

[Baroness Hayman (CB)]

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

[Lord Keen of Elie]

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

[Baroness Ludford (LD)]

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

[Lord Keen of Elie]

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

[Lord Goldsmith (Lab)]

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

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

[Lord Keen of Elie]

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

[Lord Beecham (Lab)]

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

--- Later in debate ---

[Lord Keen of Elie]

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

[Baroness McIntosh of Hudnall (Lab)]

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

[Lord Keen of Elie]

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

Civil Liability Bill [HL]

Lord Keen of Elie Excerpts

Ping Pong (Hansard): House of Lords
Tuesday 20th November 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That this House do agree with the Commons in their Amendments 1 to 6.

1: Clause 3, page 4, line 17, at end insert—
“( ) The Lord Chancellor must consult the Lord Chief Justice before making regulations under this section.”

--- Later in debate ---

6: Clause 14, page 16, line 6, leave out subsection (2)

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

My Lords, with the leave of the House—or as the House leaves—I beg to move that the House do agree with the Commons in their Amendments 1 to 6.

The Civil Liability Bill will provide effective measures to tackle the continuing high number and cost of whiplash claims, which will lead to lower insurance premiums for ordinary motorists. It will also create a better system for setting the personal injury discount rate.

I should like to take this opportunity to thank noble Lords for their contributions and insightful scrutiny, which have already shown during previous debates how the Bill can be strengthened and improved.

The Commons amendments we are considering today were all brought forward by the Government in the other place. Amendment 1 introduces a requirement for the Lord Chancellor to consult the Lord Chief Justice before setting the tariff. This amendment was introduced to meet a commitment made to this House and, in particular, to the noble and learned Lords, Lord Judge and Lord Hope, at Report.

It remains the Government’s firm view that it is the Lord Chancellor who should set an appropriate and proportionate tariff through regulations. This enables the Government to ensure that damages remain proportionate and continue to disincentivise unmeritorious claims, but following reflection on the helpful points made by this House during debates in Committee and at Report, the Government agreed that there is merit in the Lord Chancellor seeking the input of the Lord Chief Justice before setting or amending the tariff. This will provide the judiciary with a formal route by which to comment on the level of damages for whiplash injuries. Consulting the Lord Chief Justice allows the views of the judiciary to be reflected in the setting of the tariff, as well as by way of the uplift in exceptional circumstances.

Amendment 2 corrects a drafting omission. The amendment clarifies, but does not change, our intent in regard to Clause 5. Clause 5 enables the Lord Chancellor to provide in regulations that the court may increase the amount awarded under the tariff in circumstances which it considers to be exceptional. The amendment adds the words “or injuries” to Clause 5(7)(a), and merely reflects that the amount of compensation specified in the tariff can relate to either a single injury or two or more injuries. This is consistent with the language used elsewhere in the Bill. This amendment makes no material change to the provisions of the Bill, but provides necessary clarification and consistency.

Amendments 3, 4 and 5 have arisen from previous debates, when noble Lords raised concerns about whether insurers would stand by their commitment to pass on the benefits arising from the Bill. Recognising the concerns raised by noble Lords and those in the other place, the Government amended the Bill in Committee in the other place to provide for an effective means for insurers to demonstrate that savings arising from the Bill have been passed on to consumers. This is the new Clause 11, as introduced by Amendment 3.

I am confident that Clause 11 allows the Government to hold insurers to account against their public commitment to pass on savings from the Bill in a rigorous but proportionate way, without risking anti-competitive or overly interventionist practices. The clause was developed after intensive and careful consultation with insurers, accountants, auditors and regulators.

--- Later in debate ---

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant with my old firm. I begin somewhat unusually by congratulating the Minister on having improved a pretty flawed Bill since it left us. I assume that he has played a significant part in that. In particular, I strongly endorse the provisions of Amendment 1, which are an improvement on the original wording. However, we would still have preferred the retention of the existing system which allows judicial discretion on the level of compensation to be awarded based on judicial guidelines. To answer the noble Lord, Lord Hodgson, that is how the system operates and there seems to be no good reason why the assessment of damages for this kind of injury should be different in those terms from any other form of injury.

Of course, we also continue to be opposed to the increase in the small claims limit by an amount higher than inflation, in accordance with the review carried out by Lord Justice Jackson several years ago of civil litigation costs. In fact, the increase is something like 100%, although I take the noble and learned Lord’s point that that is not strictly within the scope of this Bill.

The Justice Select Committee warned that,

“increasing the small claims limit for PI creates significant access to justice concerns”.

The Government’s plans to increase the small claims limit will mean that more cases are allocated to the small claims track. That will leave tens of thousands of working people priced out of getting proper legal representation. These measures are a further gift to insurance companies which are already experiencing increased profits at the expense of people injured through no fault of their own.

What assessment have the Government made of the impact of the changes to the operation of the courts, given that increasingly claimants will be unrepresented? Within the last fortnight, the Permanent Secretary at the Ministry of Justice has told the Justice Select Committee that two of the main spending assumptions were fundamentally “unrealistic” and that even the Treasury recognised that the department was under “considerable strain”. In these circumstances, how confident is the Minister about the ability of the courts to deal with an increase in unrepresented claimants from 5% to 30%, as predicted in the whiplash impact assessment? That of course relates only to that particular area; there will be another shortfall in relation to other claims. How long do they anticipate will be the “long term” envisaged before the courts operate at cost recovery level, as suggested in the whiplash impact assessment? To be clear, whiplash impact for this purpose is on the system, not on the unfortunate claimant.

It is estimated that insurers will gain £1.3 billion a year. I hope that the noble and learned Lord’s confidence that the industry will ensure that those savings are passed on to policyholders will be proved correct. Why will it be six years before the Treasury reports to Parliament on the savings accrued to policyholders, as apparently will be the case? It seems an inordinately long time to assess the impact of this provision. Further, is it not ironic that the Government, who make so much of the need to protect policyholders from the impact of exaggerated or fraudulent claims, have themselves increased insurance premium tax four times in eight years, thereby currently collecting £2.6 billion a year more from the people they purport to be helping through this Bill?

While the commitment given at Third Reading in the Commons that vulnerable road users will be exempt from the changes is welcome, why are children and people injured at work not included in the exemption? Extending the change to those two groups would seem to be a reasonable move.

By sheer coincidence, today sees the publication of the report of the Constitution Committee. It is highly critical of the Government’s increasing reliance on secondary legislation. The committee supported the views of the Delegated Powers and Regulatory Reform Committee earlier this year that key measures should be included in the Bill and not left to secondary legislation. Also, most tellingly, it said that judges, not the Lord Chancellor, should set the new tariff and that the Lord Chancellor should not be granting powers to make provision for damages relating to minor psychological injury. This accords with amendments debated during the passage of the Bill through this House but not enacted.

I hope that a review of this measure will provide an opportunity to return to this issue and adopt that approach in due course. I repeat that the Bill comes back to us in better condition than it was, but I remain convinced that it is not in as good condition as it should be.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Beecham, for acknowledging that we have at least achieved a curate’s egg, if nothing more.

The Bill makes important changes to our personal injury compensation system; it makes that system fairer, more certain and more sustainable in future for claimants, defendants, motorists and the taxpayer. That builds on our wider reforms to cut the cost of civil justice claims and strengthen the regulation of claims management companies, which play such a big part in this. The first part of the Bill will deliver a key manifesto pledge. It will support the consumer by bringing down the cost of living through a crackdown on exaggerated and fraudulent whiplash claims that lead to higher insurance costs. The second part of the Bill will provide a fairer method for setting the personal injury discount rate and reviewing it so that it does not remain at one level, as it did for 16 years.

I am grateful for noble Lords’ observations and careful scrutiny of the Bill. I want to touch on one or two of their points. The noble Lord, Lord Sharkey, commented on the complexity of the approach taken on Clause 11. That approach was carefully crafted after consultation with interested parties, including the FCA, to ensure that it is as effective as possible. At the end of the day, the Government’s approach has been determined by the need for a rigorous and proportionate regime for insurers as far as savings are concerned. We have to remember that the FCA is an independent body. Clearly, we cannot confirm exact FCA action in respect of these matters but we assure the House that it will take very seriously any case where an insurer does not treat customers fairly. That could include a public commitment not being met if that formed part of a policyholder’s or consumer’s expectations.

The Government have taken a careful and considered approach to what is sometimes termed “naming and shaming”, particularly with regard to the provisions in Article 6 of the European Convention on Human Rights. There are circumstances in which the FCA may decide publicly to censure a firm, but that would typically follow a detailed investigation. The idea of somehow naming and shaming a firm before such an investigation could raise questions about convention rights under Article 6. I suggest that we have taken a considered approach to this but, ultimately, those outliers—if I can call them that—who might seek to abuse the system will be open to censure, potentially publicly, by the FCA in due course.

In the context of the point made by the noble Lord, Lord Hodgson, I readily adopt the observations of the noble and learned Lord, Lord Judge. At the end of the day, consultation with the Lord Chief Justice will allow the judiciary some input into, or comment on, the setting of the tariff of damages against the background of its knowledge of the general level of damages awarded for personal injury in diverse cases. One would hope that this would ensure no material divergence in levels of damages as far as that is concerned.

The noble Lord, Lord Monks, raised a number of questions. Regarding Amendment 1, the primary legislation approach to setting the tariff is not considered appropriate because it should be amenable to review and flexibility. Setting it in stone would not allow for that. Regarding the question of employers’ liability and employers’ liability clauses, we consider that the courts are equipped to cope with such claims. On cost recovery, referred to in the impact assessment at paragraph 5.66, I note that the aim is ultimately to try to achieve cost neutrality so far as the court process is concerned, but I acknowledge that that is a long-term aim.

Brexit: Negotiations

Lord Keen of Elie Excerpts

Tuesday 20th November 2018 Lords Chamber

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

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

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

[Lord Wallace of Saltaire]

My Lords—

[Lord Keen of Elie]

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

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

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

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

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

[Lord Forsyth of Drumlean]

Will my noble and learned friend—

[Lord Keen of Elie]

No, I am not going to take interventions.

[Lord Forsyth of Drumlean]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

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

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

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

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

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

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

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

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

[A noble Lord]

What does that mean?

[Lord Keen of Elie]

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

[Baroness Hayter of Kentish Town]

Your party had the first one.

[Lord Keen of Elie]

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

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

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

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

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

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

[Lord Bridges of Headley]

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

[Lord Keen of Elie]

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

[Lord Wallace of Saltaire]

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

[Lord Keen of Elie]

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

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

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

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

[Lord Carlile of Berriew]

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

[Lord Keen of Elie]

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

[Lord Hannay of Chiswick]

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

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

[Lord Keen of Elie]

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

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

[Lord Warner]

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

--- Later in debate ---

[Lord Keen of Elie]

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

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

[Lord Goldsmith]

When will it be brought forward?

[Lord Keen of Elie]

I understand that it will be in the new year.

[Noble Lords]

Oh!

[Lord Keen of Elie]

Every year is a new year.

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

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

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

I am obliged to noble Lords for their attention.

Motion agreed.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL]

Lord Keen of Elie Excerpts

3rd reading (Hansard): House of Lords
Tuesday 13th November 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That the Bill do now pass.

[Baroness Chakrabarti (Lab)]

My Lords, I shall not trouble the House for long. Notwithstanding some differences of principle between us, I am very grateful to the Minister and his Bill team for the limited movement towards safeguards in the Bill, but it is a shame that the Bill was not a possible vehicle for the prohibition of cross-examination of domestic violence victims in the family courts. It is government policy and it would surely command cross-party and non-party support, so I hope the Minister will talk to his colleagues in government and make time for this discrete but vital measure before too long.

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

My Lords, we are conscious of the need to address this measure and have of course addressed it in the past. I note what the noble Baroness, Lady Chakrabarti, has said on that topic but, nevertheless, I beg to move that this Bill do now pass.

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

The noble and learned Lord has pre-empted me but I wanted to add to what the noble Baroness, Lady Chakrabarti, said, with our thanks for the co-operative way in which this Bill was handled. I also thank the noble and learned Lord, Lord Keen, his ministerial colleague the noble Baroness, Lady Vere, and the excellent Bill team who did so much work on it. We on these Benches are very grateful for the way in which new Sections 67A and 67C of the Courts Act 2003 were inserted, limiting the functions of delegated officers and providing for judicial reconsideration of delegated decisions. They were dealt with co-operatively and it is a tribute to the way this House can deal with matters co-operatively and achieve improvements to the Bill. We are content with the Motion.

[Lord Keen of Elie]

My Lords, I apologise to the House for pre-empting the noble Lord and I am obliged for his observations. Again, I move that the Bill do now pass.

Bill passed and sent to the Commons.

Voyeurism (Offences) (No. 2) Bill

Lord Keen of Elie Excerpts

Tuesday 13th November 2018 Lords Chamber

Moved by

[Lord Keen of Elie]

That the order of commitment of 23 October be discharged and the Bill be committed to a Committee of the Whole House.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012: Review

Lord Keen of Elie Excerpts

Monday 12th November 2018 Lords Chamber

[Lord Bach (Lab)]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and declare my interest as the police and crime commissioner for Leicester, Leicestershire and Rutland.

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

My Lords, the Government remain committed to publishing the findings of the post-implementation review of LASPO by the end of the year. The evidence-gathering phase of the review concluded in September and we are considering the evidence submitted. During that phase we engaged more than 70 organisations. This review process also represents an opportunity for the Government to consider what the future of legal support should look like.

[Lord Bach]

I thank the noble and learned Lord for his reply and commend those in the Ministry of Justice who are carrying out the review for their courtesy and willingness to meet with all interested parties. I thank Lucy Frazer MP personally for meeting with me and members of the Bach Commission, which proposed some sensible changes that the Government could make very quickly. Is the Minister aware that there is a broad consensus among senior judges, practising lawyers, parliamentarians of all colours and none, and many others, that Part 1 of LASPO was a serious mistake that has led to many of our fellow citizens being deprived of access to justice—and if people cannot access justice, why should they in the long run consent to live under the rule of law?

[Lord Keen of Elie]

My Lords, we are conscious of the importance of access to justice. I thank the noble Lord and those who sat with him on his commission for their contribution to the debate, but I will not anticipate the outcome of a review that will be published by the end of the year.

[Viscount Hailsham (Con)]

My Lords, I no longer practise at the criminal Bar, so I have no present interests to declare—but I know very many people who do, and I can tell my noble and learned friend that there is a real sense of crisis in the criminal Bar. Does my noble and learned friend accept that unless the Government urgently and fully address the anxieties expressed by the Criminal Bar Association—of which I was a member—and articulated fully in the book The Secret Barrister, there is a real danger that the independent criminal Bar will cease to exist, which would be a very great loss to the administration of justice in this country?

[Lord Keen of Elie]

My Lords, of course we have the highest regard for the independent criminal Bar and are concerned to ensure that it is sustained in a suitable way—but, again, I will not anticipate the outcome of the present review.

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

My Lords, nobody is asking the noble and learned Lord to anticipate the review. This is an internal MoJ review, which many regret. However, since it is an internal review, have Ministers told officials conducting it how much could be available to boost the resources for legal aid in view of the mistakes that have been widely acknowledged and, in particular, how much they would be able to spend of the estimated extra savings from LASPO over and above what the Government predicted—currently estimated at about £500 million a year? I asked a similar question on 19 April. May we now have a reply?

[Lord Keen of Elie]

My Lords, I say again that I am not going to anticipate the outcome of a review that is due to be published before the end of this year.

[Lord Howarth of Newport (Lab)]

My Lords, does the Minister accept that justice delayed is justice denied? Does he also accept that, following the Chancellor’s Budget Statement, we are looking at the prospect of justice indefinitely denied, with further real-terms cuts to the already ravaged budget of the Ministry of Justice, continued gross underfunding of the courts and—the most flagrant systemic injustice—the continuation of the Government’s scorched-earth policy on legal aid?

[Lord Keen of Elie]

My Lords, we face economic challenges. I remind the noble Lord opposite that it was the last Labour Prime Minister who announced the end of boom and bust. He did so without consulting either the markets or even the Delphic oracle. One Labour Minister pithily observed as he left government that,

“there is no money left”.

The coalition Government had to pick up the pieces of an economy blown to pieces by the last Labour Government and we have been putting it back together. We are doing so responsibly. We are not the cause; we are the cure.

[Baroness Deech (CB)]

My Lords, just three years ago we came together in this country with representatives from the common-law world and the Royal Family to mark Magna Carta and celebrate the rule of law. However, in family law, does the Minister realise that husbands and wives are going to court with one often having legal representation and the other, usually the wife, not, and that judges have to spend their time carrying out the job that barristers should be doing because they cannot be afforded? Is this not an injustice to women? Does he further realise that altruistic, young would-be barristers are being put off going into criminal and family law because they are unable to earn a living, which is destroying social mobility and the rule of law?

[Lord Keen of Elie]

My Lords, there are challenges facing those who seek to deliver legal services in our country today. We are conscious of that, which is why the review of LASPO has been undertaken. In the context of matrimonial matters, I observe that we have at least introduced a digital portal for undefended divorces, which has been a considerable success. In addition, we have seen a very significant increase in the provision of legal aid in cases involving domestic violence.

[Lord Faulks (Con)]

My Lords, Part 1 of LASPO, referred to by the noble Lord, Lord Bach, covers third-party funding by the state. But there is another source of third-party funding: that is, those who invest in litigation, which is a growing field. It used to be unlawful. Many are concerned that it distorts the whole business of litigation. Can my noble and learned friend the Minister tell me whether this is a matter for consideration, either in this report or generally by the Ministry of Justice, and whether there is not room for more regulation of this area?

[Lord Keen of Elie]

My Lords, the matter of third-party funding has now become well established and makes a contribution to the delivery of legal services in this country, but it is a matter that is the subject of consideration as we go forward. I cannot say that it is directly addressed in the context of the LASPO review that is to be published by the end of the year.

Prisons (Interference with Wireless Telegraphy) Bill

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

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

My Lords, first, I congratulate my noble friend Lady Pidding on bringing this Bill before the House. Like her, I thank Members in the other place who have made a significant contribution to the progress of the Bill so far. I strongly concur with my noble friend’s assessment that the Bill will make an important contribution to keeping our prisons safe and secure. I note the contributions from other Members of your Lordships’ House—it appears that they agree with the aims and objectives of the Bill. It would be deeply regrettable if for any reason the Bill could not find its way swiftly on to the statute book, given the need to address such an important issue with regard to our prisons.

Noble Lords clearly understand that the illegal supply and use of mobile phones presents real and serious risks not just to the stability of our prisons but to the safety of the public. Illicit phones erode the barrier that prisons walls place between prisoners and the community. They can be used to commission serious violence, harass victims and continue organised crime and gang activity outwith the walls of the prison. They are also key to the illicit economy within prisons, and consequently contribute to the cycle of debt, violence and self-harm that can occur in prisons, particularly where it is related to drugs.

Examples of the risk that illicit mobile phones in prison pose to the public are clear. We should have no doubt about the seriousness of the crimes committed by means of mobile phones. As a result of considerable work and intelligence-led enforcement activity, we have managed to investigate and prosecute crimes committed in prison using mobile phones and the control of criminal activity outside prison from within prison.

Clearly this is a major issue. The noble Baroness, Lady Hayter, referred to the number of mobile phones that are being recovered in prisons. It is an ongoing and demanding issue that we seek to address in various ways. Addressing the security challenge posed in many cases is an essential prerequisite to making prisons safer and therefore capable of performing their rehabilitative functions.

Noble Lords highlighted the need to continue to provide legitimate ways for prisoners to contact family and friends as we tackle the illicit use of mobile phones. We recognise and endorse that point. Recent research published by the Ministry of Justice has shown the beneficial impact that maintaining family links can have on reducing reoffending. The provision of accessible legitimate telephony services is obviously a key factor in maintaining those links, and there is an ongoing programme of work to improve those services. Touching upon a point raised by the noble Lord, Lord German, we have completed the deployment of in-cell telephony to 20 prisons to make calls more accessible to prisoners. We are investing £7 million over the next two years to provide in-cell telephony in a further 20 prisons. In response to a point made by the noble Lord, Lord Ramsbotham, we have also reduced tariffs in these sites to make calls more affordable. I recognise that telephones that are otherwise available in prison are subject to a higher tariff than that normally found in domestic tariffs because they are essentially charged on a pay-as-you-go basis. That is being addressed. For the avoidance of doubt, we hope all in-cell phones will be on a more affordable tariff. There will be limitations on the use of those phones because they will be limited to preapproved phone numbers and there will be robust restrictions in place to address that.

The noble Lord, Lord Ramsbotham, raised a point in earlier conversations about linking the availability of such in-cell telephony with incentives and privileges within the prison. We recently consulted on the incentives and earned privileges policy. As we take that forward, I will pass his point on to officials because it strikes me that it is worthy of further consideration.

As for the means by which we seek at present to limit the use of mobile phones, we have the means touched upon by the noble Lord, Lord German. He talked about the jamming of equipment and the identification of particular phones and the use of a fence, as mentioned by the noble Lord, Lord Ramsbotham. I will come back to that point in a moment. Looking at the current means of trying to limit mobile phones within prisons, we have the basic idea of searches, detection using scanner technology, telecom restriction orders—which I think are what the noble Lord was alluding to—and blocking devices. It is a problem that if blocking devices are not deployed with sufficient care we can end up blocking telephony outwith the curtilage of the prison itself. There are therefore certain limitations on their deployment, and we agree with that, so their use has to be approached with considerable care. In addition, because of those limitations there are instances where the blocking cannot be deployed throughout the entire prison itself, where there may be areas that are not blocked. So blocking is not a complete answer so far as mobile telephony is concerned. Where it is deployed, however, let me be clear that the blocking of such equipment extends not only to telephony but also to data—there is no question of that—because they both operate on the same part of the network. Therefore where it is effective in respect of telephony it is also effective in respect of data.

Then there is the issue of wi-fi provision outwith the curtilage of the prison that might be picked up within the prison itself. There is a theoretical risk of that happening; albeit in this day and age one would expect these wi-fi providers to be password-protected, that would not always be the case. Indeed, one of the aims of the present Bill is to enable us to engage with the telecommunications companies in order to develop strategies as the telecommunications develop. One area where we may be able to address this is with regard to further technology to combat the ability of people to pick up wi-fi signals from outwith the curtilage of the prison. As I say, it is a theoretical risk; it is in theory an issue that we would want to address, and one that we feel we might be able to.

[Lord German]

Perhaps the Minister would allow me to reiterate the point that when you take out a broadband contract with the largest provider in this country, it gives you the option of allowing your wireless to be available to others. If you do that, clearly there are a large number of people operating through this system where you do not require permission, because that has already been given, nor do you require a password. It just automatically happens when you walk down streets with which you are unfamiliar.

[Lord Keen of Elie]

I recognise the point made by the noble Lord, Lord German. That is why, as I say, the Bill would allow us to engage with the telecommunications companies in order that we can combat that sort of development and indeed future technology that may not create an issue at present but may create one in future as we go on to 5G and 6G technology.

We have already invested £6 million in prisons to provide them with modern technology such as scanners, phone-blocking technology and indeed improved searching techniques. Clearly we want to do more. We then have the telecommunications restrictions orders that would enable us to disconnect mobile phones or SIM cards identified as operating within a prison. But I want to be clear: the purpose of the Bill is to ensure that we can engage directly with, and grant permissions to, the telecommunications providers, which are probably the best qualified to guide us on how we can best meet the demands in future presented by the illicit use of mobile phones within our prison estate.

I hope that that has addressed the points raised by the noble Lord, Lord German, because I would not want the Bill to be derailed. I hope that it has also addressed the points raised by the noble Lord, Lord Ramsbotham. The noble Baroness, Lady Hayter, ranged into a wider area with regard to courts and prison reform, and in particular raised the issue of cross-examination in domestic cases within the family courts, as distinct from criminal courts. I undertake to write to her on that subject rather than endeavouring to address that issue in the context of this debate. I hope that she will accept that undertaking from me.

With that, I commend my noble friend for moving this Private Member’s Bill.