Brexit: Dispute Resolution and Enforcement (European Union Committee Report) - Motion to Take Note

Part of the debate – in the House of Lords at 5:13 pm on 17th October 2018.

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Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union) 5:13 pm, 17th October 2018

My Lords, I, too, was delighted to serve under the splendid chairmanship of the noble Baroness, Lady Kennedy, who has introduced our report so comprehensively and indeed does a very good job of keeping us in order. It is also a pleasure to participate in a debate with colleagues from the sub-committee. I note that we now have two Lord Andersons. We have the noble Lord, Lord Anderson of Swansea, of that ilk, who is a valued colleague on the sub-committee, and we have the noble Lord, Lord Anderson of Ipswich. I am particularly pleased to take part for the first time in a debate with him because our paths crossed when he was the Independent Reviewer of Terrorism Legislation and I focused on EU justice and security matters as an MEP. His interest in the EU dimension set an example that was not always followed by British officials and institutions.

During the debate, we have noted various features common to Brexit negotiations as a whole that pop up in this area. I should just like to enumerate them. The first—the big elephant in the room—is, of course, the red line against the jurisdiction of the ECJ. It has bedevilled the whole of the negotiations, but particularly in this area, where its impact is greatest and most damaging. As my noble friend Lord Thomas of Gresford said, such prejudice against the court is fuelled by empty and ill-informed rhetoric of the Brexiters. The noble Lord, Lord Anderson of Swansea, rightly described it as a “thick red line”: given the Brexiter confusion between the ECJ and the ECHR, perhaps it is “thick” in more ways than one.

The noble Lord, Lord Hannay, noted that the Prime Minister still said a few weeks ago that the role of the ECJ in the UK would cease. He rightly described that as misleading. I would go further: it is totally wrong in the light of the Government’s own contributions. Again, as the noble Lord, Lord Anderson of Swansea, said, “Now you see it, now you don’t”. The second common feature of the whole sorry saga of the Brexit negotiations is dishonesty and unreliability. What can we trust that we hear from the Government? Is it still going to be true tomorrow? “Will you still love me tomorrow?”

The third feature is that all of the alternatives to EU membership are more messy, more complicated, more difficult to follow and less transparent and accessible for citizens and businesses. As the noble Lord, Lord Bilimoria, said, we will have multiple systems of dispute resolution and enforcement. Some of those are the special regime for citizens’ rights, the withdrawal agreement, the transition and the future relationship. Then we have the dispute resolution between the parties and the attempt at private enforcement by citizens and businesses.

The fourth feature is a belief that everything is political, with a disdain for a so-called legalistic approach. This apparently applies to the debate on the Irish backstop. This pejorative term—it is used pejoratively—fails to recognise that the EU has a legal and constitutional order. It cannot just throw this over. I think that many Brexiters do not like courts and judges, full stop. We are undermining our negotiating ability by failing to recognise the fundamentals about the EU legal order. Linked to that is the complacent idea that the UK can expect a bespoke arrangement just to suit us because we are big, important and we are—well, us.

The fifth feature is the failure to put forward credible and workable proposals. As the noble and learned Lord, Lord Hope of Craighead, said, they have not surfaced. As the noble Earl, Lord Kinnoull, reminded us and as my noble friend Lord Newby mentioned on Monday, proposals always seem to be happening “soon”, “in due course” or “when the time is right”. That time is now. As the noble Baroness, Lady Shackleton, just said, we are deafened by the silence. This is creating enormous uncertainty and anxiety out there in the real world because the enforcement and dispute resolution options for the future relationship will be shaped by the closeness of the partnership. We are in that cart-before-horse situation where the Government’s failure after two years to decide precisely what model they seriously want to pursue has held back sensible discussion on mechanisms.

The July White Paper clarified what the Government meant by the term the Prime Minister had used in two speeches that the UK would “respect the remit” of the CJEU when participating in agencies and programmes. The White Paper explained that this meant respecting court’s ability to adjudicate in cases of disputes about decisions made by those agencies “that affected the UK”. There was then rowing-back, a phrase used by the noble Lord, Lord Anderson of Swansea. He pointed out the words at the end of—I shall be precise—paragraph 38 in chapter 4.4.3, which added,

“noting that this would not involve giving the CJEU jurisdiction over the UK”.

We know, as the noble Lord, Lord Hannay, pointed out, that we have had lots of smoke and mirrors about direct and indirect jurisdiction, but how can the Government say that respecting the “remit” of the ECJ does not mean its jurisdiction? Please can the Minister precisely explain the distinction between those two terms?

Interestingly, the Government’s response to the report that we are now debating came just a week before the White Paper. It said that,

“if we agree the UK should continue to participate in an EU agency this would mean abiding by the rules”,

including that,

“the UK would have to respect the remit of the CJEU”.

But it added another rider:

“our Parliament would remain ultimately sovereign. It could decide not to accept these rules”.

It then had the grace to acknowledge that there would be consequences for our membership of the relevant agency; that is, Europol. It seems telling that, just a few months ago, the Government should say, “We’re going to respect the remit, but of course, at any time, our Parliament might decide in its sovereignty that it’s going to throw over those rules”. What is Mr Barnier meant to work on when he has this chopping and changing all the time?

Two areas have been cited in the debate where there will in any case be an element of jurisdiction of the court, direct or indirect: obviously, on the European arrest warrant, assuming that the problems about non-surrender of nationals do not bedevil our participation—a problem solved within the context of the EAW. But if, for instance, a UK surrender request to a French court is contested by the wanted person, the French court could refer that case to Luxembourg. To use a phrase of the noble and learned Lord, Lord Hope, we could not rely just on a “cordial, friendly understanding”; there would be legal norms to be enforced. The second area is seeking a data adequacy assessment, which will be made in the light of EU law.

The noble Lord, Lord Anderson of Ipswich, said that the EU and UK legal systems would be diminished by our non-participation in the EU’s legal order. UK lawyers have made a big and positive contribution to developing EU law, and its ending is much to be regretted. It was such an element of strength for us. In the whole justice and security area, we kept wanting opt-outs and so on; we have never played to our profound strengths in the legal area. Nowhere was that more obvious than in Luxembourg.

Unfortunately, the Government do not seem terribly interested in the loss of access to justice and enforcement of rights for citizens and businesses, which will be difficult particularly for small businesses. I, too, will be interested in the answers to the questions raised in our report, and expertly put by the noble Lord, Lord Anderson of Ipswich, about how that is supposed to work for citizens and individuals. That the Government seem so uninterested in that topic tells us all we need to know about “taking back control”. It actually means robbing people of their rights.