European Union (Withdrawal) Bill

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

Committee (3rd Day)

15:43

Relevant documents: 12th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee

Clause 2: Saving for EU-derived legislation

Amendments 14 and 14A not moved.

Amendment 15

Moved by

[Lord Pannick]

15: Clause 2, page 1, line 12, leave out paragraphs (b) to (d)

[Lord Pannick (CB)]

My Lords, Amendment 15 arises out of the report of your Lordships’ Constitution Committee published on 29 January which I commend to the Committee. The amendment has been tabled in the names of four members of the Constitution Committee, myself and the noble Lords, Lord Norton of Louth and Lord Beith, and our much respected chairman, the noble Baroness, Lady Taylor of Bolton.

One of the matters about which we expressed concern is whether the Bill as currently drafted will ensure, as the Government intend, the clarity and certainty that is required of the law as from exit day. I should emphasise that the amendments to the Bill which derive from the Constitution Committee’s report are being moved as probing amendments. We believe that we have identified problems that require debate and consideration by the Government, but we are not suggesting that our proposed solutions to these difficult problems are the last word.

Amendment 15 addresses what we believe to be the first fundamental difficulty with the approach adopted in the Bill. Clause 2 includes within the scope of the concept of EU-derived domestic legislation not merely those regulations which have been made under powers contained in the European Communities Act 1972 that Clause 1 is of course going to repeal, it also purports to include within the scope of EU-derived domestic legislation other primary or secondary legislation which has been enacted by normal procedures—that is, not using the powers in the 1972 Act but legislation that was enacted for the purpose of implementing our EU obligations or which relate to them. A good example is the Equality Act 2010. For the purposes of this Bill, Acts of Parliament such as the Equality Act are to be treated as EU-derived domestic legislation even though they would continue to be part of domestic legislation without the Bill. As I understand it, that is the purpose of Clause 14(6).

The scope of Clause 2 matters for two reasons. First, if an enactment falls within Clause 2 and it is therefore by reason of Clause 6(7) retained EU law, the delegated powers which Ministers will have under Clause 7 will apply. The Committee will come to consider those delegated powers in due course because they are very extensive. A number of amendments have been tabled in relation to them. The other reason this matters is that the consequence of a provision being retained EU law is that the supremacy principle under Clause 5, which again we will come to, also applies, so the retained EU law such as the Equality Act will take priority over other laws which are enacted up until exit day. Clause 2 therefore poses real problems for legal certainty because some of the provisions of the Equality Act, for example, will have been enacted for the purpose of implementing EU law obligations while some will have been enacted for other purposes. Some of the sections of the Equality Act relate to our EU law obligations while others do not.

Given that, perhaps I may ask the Minister, the noble and learned Lord, Lord Keen, who I believe is going to respond for the Government on this, whether Clause 2 means that if any part of the Equality Act, as an example, was passed in order to implement an EU law obligation or relates to one, the whole of the Equality Act is within the scope of Clause 2 as retained EU law, or does Clause 2 mean that only those provisions of the Equality Act which implement an EU law obligation or are related to it are within Clause 2? I ask this because the language of Clause 2 focuses on the enactment, which suggests a statute by statute approach. If that is right, Ministers will be conferring upon themselves through Clause 7 a very wide power to amend by delegated legislation provisions of the Equality Act or other Acts in which provisions were enacted for other purposes. Indeed, if Clause 2 applies to the whole of the Equality Act then the supremacy principle will give priority to the whole of the Equality Act over other legislation enacted up until exit day. We need to know the answer to that question.

The Constitution Committee’s view is that the concept of EU-derived domestic legislation in Clause 2 ought to be confined to those enactments made under the powers conferred in the European Communities Act, which is what the Bill is all about—powers that the Bill would repeal. That would have the virtue of clarity and certainty. It would cut down the scope of the delegated powers that Ministers will enjoy under Clause 7 and limit the supremacy principle. The Constitution Committee respectfully suggests that that approach accords with constitutional principle. It said at paragraph 22 of its report:

“It is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as ‘retained EU law’ by clause 2 and subject to the powers of amendment in clause 7”.


The Bingham Centre for the Rule of Law, which has made very valuable observations on these issues, has pointed out, and I agree, that if the Committee were to amend Clause 2 in this respect, consequential changes would be needed to Clause 6 to ensure that provisions in the Equality Act, for example, that implement EU law will continue to be interpreted by reference to judgments of the Court of Justice in Luxembourg delivered before exit day.

These are difficult issues but the Constitution Committee suggests that they are important. I look forward to hearing the Minister’s response. I beg to move.

[The Lord Speaker (Lord Fowler)]

My Lords, I should notify the Committee that if Amendment 15 is agreed to, I cannot call Amendment 16 by reason of pre-emption.

[Lord Adonis (Lab)]

My Lords, the noble Lord Pannick, is a great expert in these matters. Could he give the Committee the benefit of his advice on whether he believes that converted law under Clause 2 has the status of primary or secondary legislation?

[Lord Pannick]

That is a very important question that we are coming to in later amendments. The Constitution Committee addressed that question. It has advised the House that one of the defects of the Bill, it respectfully suggests, is that it does not address that vital question and that legal uncertainty will be caused without it being addressed. The Constitution Committee suggested that retained EU law should be given the status of primary legislation, but there is a variety of views on this. The committee advised—I do not speak for the committee, but I am reporting what its report said—that this issue has to be addressed in the Bill. We are coming to it in later amendments.

[Lord Beith (LD)]

My Lords, I speak as a member of the Constitution Committee to make it clear that the committee would say that the noble Lord, Lord Pannick, has spoken very lucidly for it in setting out the amendment. We are talking about provisions in Acts of Parliament—the Equality Act is one example—that implement EU obligations and would not be repealed by withdrawal or by the repeal of the European Communities Act. Yet Clause 2 opens up to the process of repeal and modification by statutory instrument provisions in UK statutes and in the legislation of the Scottish and Welsh Parliaments. These are provisions in law that are not nullified or made inoperative by the act of withdrawal; they would stay on the statute book. Of course, the legislation may contain features that do not of necessity arise from the requirements of EU directives or other EU obligations. We talk much about British gold-plating of EU measures. We will probably find in a number of measures which this clause would draw in features which were clearly not within the scope of the requirement placed on us by our membership of the European Union. The committee concluded:

“The effect is to inflate the range of domestic law—including primary legislation—in relation to which the ministerial “correction” powers … can be exercised”.


These are powers the extent and scope of which are extremely worrying to the committee.

As the noble Lord, Lord Pannick, said, the Bingham Centre has produced a helpful analysis of many of the things that the committee was concerned about. In almost all cases, it agrees with the committee’s analysis, but, in some, it does not agree with the committee’s proposed remedies. In this case, it suggests that if we go down the route proposed by Amendment 15, there should be an amendment to Clause 6 to make it clear that provisions in EU case law should be taken into account when interpreting EU-derived law which is already on the statute book. The logic is that it is far better that the law is in only one place rather than in two, but we would not want by that means to take away from the court the opportunity to take into account EU-derived case law prior to our withdrawal from the EU, if it ever happens.

The committee is on to an important point. I hope that we can explore as a result of this short debate ways of dealing with it.

[Baroness Taylor of Bolton (Lab)]

My Lords, while I do not want this section of the debate to be dominated by members of the Constitution Committee, I should congratulate my noble friend Lord Pannick on the way he presented the amendment despite it certainly not being in the interest of the legal profession—if we manage to get legal certainty in the Bill, the lawyers will not have their field day. However, I fear that, unless we achieve legal certainty and the clarity that my noble friend mentioned, we will be in real difficulty. Our committee has put forward suggestions, but we do not think that they are the only ways forward. It is important at this stage that the Government recognise the extent of the problem and the damage that will be done if we do not have some amendment and some concessions from them in this area. It is of course an area linked to the other parts of the Bill, because, unless we make changes here, the powers that the Government will have under Clause 7 will be completely unacceptable because of the breadth of legislation there captured.

I therefore urge the Minister to reflect carefully not only on the suggestions of the Constitution Committee but on those of others outside, because this problem will dog the Bill for ever if we do not make some changes here.

[Lord Mackay of Clashfern (Con)]

I support the idea that we should get legal certainty in the Bill, and if that damages the interest of the legal profession, it is damage in the public interest.

However, I venture to suggest that it may be wise to leave this provision pretty much as it is. That is because quite a lot of legislation was passed in the light of obligations imposed by the European Union, but we proposed our own legislation to deal with it. As the noble Lord, Lord Pannick, excellently illustrated, that legislation is exemplified by the Equality Act. I read this clause as referring only to the part of the enactment,

“so far as … passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of that Act”.

As the noble Lord, Lord Pannick, said, “enactment” sometimes suggests a whole Act, but this provision restricts it to the part of the enactment that deals with this point.

As the noble Lord, Lord Beith, said, it is quite likely that some of these measures are gold-plated—there used to be quite a lot of suggestions from various quarters that we went in for gold-plating. When I was in a sense responsible for some of these matters, I discovered that the gold-plating was more a result of some antagonism to the Bill in question than it was gold-plating in the sense of going beyond what the European Union required. So far as there is gold-plating of that sort—that is, unnecessary as far as the European Union is concerned—I do not think that this clause would strike it, because it is “so far as” the thing is made in view of the provisions “in section 2(2)(a) or (b)” and so on of the Act. Of course, as has been pointed out, it is perfectly likely that in some of these provisions that were introduced in that way adjustment will be required because we are leaving the European Union.

Some provisions—I have not looked too closely at how many but I imagine there might be quite a few—of these ordinary Acts of Parliament will have a connection with the European Union that may be affected by our leaving it. Therefore it is important that in that situation a power to deal with that matter in a reasonable time would be required, and we will be looking at these later. Therefore, I am inclined to think it may be better to leave this provision as it is. I am very interested to hear what my noble and learned friend the Minister has to say about that.

As for the supremacy principle, I will have something to say about that if I happen to be present when it arises. I said at Second Reading and I say again that I think the Constitution Committee has produced a superb solution to that problem, which enables us to forget for ever the supremacy of European law over our law.

16:00

[Lord Adonis]

My Lords, there is no more terrifying ordeal in your Lordships’ House than intervening in a debate between lawyers, particularly following the noble and learned Lord. It appears to me, however, as a layman reading the Bill for the first time and reading the reports of our Constitution Committee, that a critical issue relating to all the debates we shall have on Clause 2 and the following clauses is whether converted law is primary or secondary legislation. Will the Advocate-General for Scotland give us his view, so that that can colour our discussion of the later groups?

When I was wrestling with this issue and reading debates in the other place, I noticed that the Solicitor-General said on 15 November last year:

“Converted law … will not automatically have the status of either primary or secondary legislation”.


He did not then go on to say what will determine whether it is primary or secondary legislation. Somewhat confusingly, he then said:

“Indeed … paragraph 19 of schedule 8 sets this out: ‘For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation’”.—[Official Report, Commons, 15/11/17; col. 416.]


Again, as a layman reading this, I wonder whether that means only in respect of the purposes of the Human Rights Act 1998 or with general applicability. I know that the Advocate-General for Scotland is good at speaking plain English as well as legalese, so will he set out for us in plain English his view of whether the generality of law converted into UK law under the Bill will be primary or secondary legislation?

[Baroness Young of Old Scone (Lab)]

My Lords, I repeat the worries about coming in on a debate populated primarily by lawyers, but if my noble friend Lord Adonis can do it, I can have a go. I very much welcomed the intent of the Constitution Committee and the amendment of the noble Lord, Lord Pannick, but I subsequently received a briefing that raised a question about it. I am very grateful to the noble Lord, Lord Pannick, for alluding to the issue of the amendment meaning that UK courts could not be required to consider existing European court decisions when interpreting and applying provisions that have been implemented through UK law by Acts of Parliament or regulations introduced under Acts of Parliament other than the ECA 1972. I am grateful that he referred to the Bingham Centre proposal that there needed to be consequent amendments later in the Bill to cover that. I want to highlight the importance of that because the reality is that about 80% of environment law stems from the European Union and much of it would be caught by this provision. We just need to be sure that if this provision were recognised as needing to be addressed by the Government, we will see that subsequent amendment to allow ECJ decisions to be taken into account.

[Lord Mackay of Clashfern]

I entirely agree with that proposition but since the noble Lord, Lord Pannick, had mentioned it, I thought for the sake of brevity I would leave it out of my remarks.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I do not entirely agree with the Constitution Committee and so, with suitable temerity, I will suggest modifications to its approach as we go through this and later clauses. Not surprisingly, I look at matters from the perspective of recent familiarity—one could say rather too much familiarity—with the making of EU legislation. So I know rather more about the input end of the pipeline than the output. But it is at the EU end of the pipeline that the genetic markers of EU principles and case law get attached, and since those markers have been reproduced in UK case law and the reasonable expectations of those affected, I have great concerns.

I accept that it is not easy to move legislation made in one constitutional environment to a different one without losing something. The Government have tried and their approach leads to various types of uncertainty, which are then plugged, as far as they can be, through sweeping ministerial power, which brings forward more concerns and uncertainty. So something needs to be done but the Constitution Committee package, while having good ideas to build on, does not quite gel for me. I have made some suggestions to sort out the wrinkles as I see them. They come mainly in amendments to later clauses but they have backwards relevance to Amendment 15. Like others, perhaps, I also discovered on Monday, thanks to my noble friend Lady Hamwee, that the Bingham Centre had done a report, which I think I can claim in part has similar conclusions to mine on Clause 2 and, indeed, elsewhere.

When it comes to Amendment 15, moved by the noble Lord, Lord Pannick, I am torn in two directions. Doing what the amendment suggests, as with other suggestions from the Constitution Committee report, is not without constitutional cost, as is mentioned in the report in respect of the Clause 5 proposals. But it happens with Clause 2 as well: some legislation that currently has an EU dimension, and therefore would benefit from judicial interpretation using EU general principles such as proportionality and fundamental rights, will no longer benefit from that. I could add to that environmental issues that are in the EU constitution. Against that, it reduces the extent of legislation that falls to be amended under Article 7 and there is a lot to be said in favour of doing less—there will be less confusion, more time for scrutiny of the remainder, and less chance of this becoming the great gold-plating Bill.

I am not immune to suggestions that if a directive has been transposed via an Act of Parliament and that Act of Parliament has established delegated powers that have been used for other transpositions, then Parliament knew what it was doing. But without examining all the documents and the details, what was the background? Did the Government say that they had to do certain things because of the EU? Did they in fact say that to close down some other amendments? What did Members have in their minds about equality and other EU fundamental rights that were well known? They could not just say that they were not taking those into account.

If you are looking at the hybrids, as has been mentioned, some Acts may be—let us say for simplicity—half EU and half UK. One that I would choose is the Data Protection Bill, where the UK has been prepared to go much further than the EU in what can be retained. You need to know which bit is UK-only and which bit is European-only. I have always assumed that it was to only the EU-derived part that supremacy and all the EU general rights would apply, and you would have to look at how it was couched.

There is also the matter of onward intertwining. The Bingham Centre also uses the example, at the foot of page 21, of the Equality Act 2010. However, it points out that there are decisions of domestic courts interpreting that Act in the light of CJEU case law, so our decisions are going to be consistent going forward. It is considerations such as that that then provoke its first conclusion on this, which is in paragraph 60 on page 22. That suggests, as the noble Lord, Lord Pannick, has acknowledged, that to make things work, you need to do something extra in Clause 6 about how to interpret legislation that has been removed from the scope of Clause 2. There is also a second, alternative conclusion in paragraph 61, which suggests amending other provisions; a future report is then promised.

As I have said, I did not get the report till late, so I had already gone ahead and made my plans. When I thought about it, one of my conclusions was that, perhaps instead of closing down the scope of the application of Clause 2, the thing to do was to close down the scope of Clause 7. My proposal, therefore, is not to exclude subsections 2(b), (c) and (d) from Clause 2 but to exclude them from having effect in Clause 7. That way, they will not be amended and tampered with, possibly apart from when it is necessary to remove some trivial EU reference that might no longer apply. I have already tabled an amendment that does that, which is on the supplementary Marshalled List for today.

I know that leaves the judges still having to look at EU principles over a wider range of law. If I interpreted some of the comments correctly on Monday, they would perhaps prefer to change that constitutional burden so that it fell somewhere else. However, I do not see how one can avoid that having to continue: that is the status quo, and judges have to look at where there is an EU angle—some EU derivation—and apply general principles and other things as appropriate. Without knowing what the subject matter is, it is very difficult—even dangerous—to come up with a blanket change, because you do not know what might be missing. In some cases it probably does not matter, in other cases it might be quite sensitive, and in others you would most certainly be throwing away some of the things about which other noble Lords have already spoken passionately with regard to fundamental rights. You would also be throwing away certain things to do with the environment. I have other suggestions for modification as we go forward, but I will leave those to the relevant clauses.

16:15

[Lord Beecham (Lab)]

My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

The Constitution Committee points out that Clause 2 is not needed to ensure that most categories of domestic legislation—which in practice will remain in force—will continue to apply. It concludes that,

“clause 2 appears to be significantly broader than it needs to be”.

The Constitution Committee affirms that it is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as retained EU law and be subject to the powers of the amendment referred to in Clause 7.

Does the Minister accept this? If not, on what basis does he take that stance? The provision appears to be a way of allowing the Government to amend legislation by the mechanism of secondary legislation. With all the concerns around the excessive use of such procedures that have frequently been expressed by committees of the House and by Members in the Chamber, it would be reassuring if the noble and learned Lord could make it clear that that is not the Government’s intention in respect of this Bill.

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

My Lords, I am grateful for the contributions from Members of the House with regard to this issue. We are extremely grateful for the extensive work done by the Constitution Committee with regard to the Bill, as set out in the report, and for the consideration that members of the committee have given to the provisions of the Bill and some of the difficult issues that arise in transposing EU-based legislation into domestic law, because it represents something of a challenge in a number of respects.

I shall begin by referring to a matter that does not arise out of this group, or did not until the noble Lord, Lord Adonis, raised it, because it may help if I address his point about whether retained EU law is primary or secondary legislation. It is neither in the Bill. There are provisions in paragraph 19 of Schedule 8 with regard to the Human Rights Act, which is a very particular case, where it will be treated as primary legislation. There is the Constitution Committee’s recommendation that it should all be treated as primary legislation. I shall not go into detail at this stage because we will address this later, but I want to reassure the noble Lord about where we are.

That recommendation raises enormous difficulties because there are aspects of EU-derived legislation that, for example, involve the enumeration of the contents of a particular dye or chemical, and the idea that we could amend that only by way of primary legislation raises issues of its own. Nevertheless, it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others. For those who have an interest in this issue, I commend for consideration, at least, the recent observations of Professor Paul Craig of St John’s College, Oxford, in a blog on the UK Constitutional Law Association site dated 26 February—only a few days ago—in which, supplementary to an earlier note that he made, he proposes a categorisation of EU-derived legislation. I cannot say that it is one that we entirely agree with, but it is certainly one that we are looking at because there is more than one route to the resolution of this issue. We are looking at that and, for noble Lords who are interested in that point, it may be worth considering.

[Lord Adonis]

For those of us who are uninitiated into this blog, what would that mean?

[Lord Keen of Elie]

I am not sure I understand the question.

[Lord Adonis]

What would the new status of legislation that the noble and learned Lord has just mentioned be?

[Lord Keen of Elie]

Professor Craig addresses a potential categorisation of EU-derived legislation by reference to its origins within EU law, so there is pre-Lisbon treaty and post-Lisbon treaty analysis based on the articles of the pre-Lisbon provisions and of TFEU post Lisbon in 2009. I shall not elaborate on it at this stage as it does not arise in the context of this group. With respect to the noble Lord, I simply want to reassure him that we understand that there is a debate about how we should categorise EU-derived legislation.

The second point I shall mention at the outset is the reference to the principle of supremacy. That turns on Clause 5(2), which ensures that the principle of supremacy—it currently has effect through the ECA—will continue to apply but only for the purpose of resolving conflicts which arise between EU law which is converted by the Bill into domestic law and pre-exit domestic law.

Again, we have to be clear what the purpose of that is. I acknowledge in passing that the Constitution Committee proposed a different way of addressing Clause 5, which on one view might be considered neat, in so far as it involves applying the principle of supremacy without using the word “supremacy”. We will come on to debate that in due course, as the noble Lord, Lord Pannick, observed, and I will not take time up with that at this stage.

I turn to Amendment 15. Clause 2 has been drawn broadly deliberately. As has been noted, it will preserve any domestic regulations made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the ECA 1972. But it also includes within its ambit any other domestic primary or secondary legislation which implements, or enables the implementation of, EU obligations and any related domestic legislation. In response to the inquiry from the noble Lord, Lord Pannick, I make the point that enactments often contain provisions derived from EU legislation—we have to remember that what we are referring to in Clause 2 is EU-derived domestic legislation. It is those parts of Acts such as the Equality Act or the Health and Safety at Work etc. Act that are EU derived which are to be brought within the ambit of retained EU law. It is necessary to read two elements: EU-derived domestic legislation—those parts of legislation that come from the EU—and retained EU law. They are linked.

[Baroness Taylor of Bolton]

I think I am following what the Minister is saying, but a moment ago he used the phrase “legislation which … enables” implementation. How much of what is “enabling” will be caught in this?

[Lord Keen of Elie]

It is only that part of the legislation which is derived from the EU which is then brought in and forms part of retained EU law. As a hypothetical example, let us suppose that there are 20 clauses in some piece of health and safety at work legislation, of which 10 are derived from EU legislation. That forms part of EU-derived legislation for the purposes of this Bill, and will come into retained EU law. But the other parts are not EU-derived legislation and will not form part of EU retained law.

[Baroness Taylor of Bolton]

I accept that, but the Minister is assuming that legislation is always very neatly compartmentalised in a way which would allow that. My fear is that there will be enabling parts of legislation that could be caught up because some subsection could be EU related.

[Baroness Ludford (LD)]

Could I just follow on from that by expressing a related concern? We know what the Government’s attitude is to the Charter of Fundamental Rights and we know that the Bill provides that there is no right of action on the basis of general principles of EU law. I am thinking aloud here, but the concern might be that even with only a strict and narrow interpretation of which bits of, say, the Equality Act are EU derived and therefore subject to all the consequences, including Clause 6, we might miss some of the context in which those narrow provisions should be interpreted if we were to remain in the EU and fully under the jurisdiction of the court.

[Lord Keen of Elie]

I am not sure I agree with that proposition. But of course, at the end of the day, pursuant to Clause 7, it will be necessary to bring forward regulations which address amendments that are required in regards to retained EU law. At that point of course, those regulations will be the subject of scrutiny to ensure that they are limited to those aspects which are EU-derived law and therefore EU retained law. I do not believe that that is necessarily a problem, but I hear what the noble Baroness has said. We will of course take into consideration any difficulties that could arise in that context.

I wish to add one further point that I meant to make at the outset in response to the noble Lord, Lord Adonis. He referred to me as the Advocate-General. I am not appearing here as a law officer, and nothing I say should be construed as law officer advice. I am appearing here as a Minister in respect of the Bill. I would not want there to be any misunderstanding in the light of his reference.

[Lord Foulkes of Cumnock (Lab)]

I am really interested in what the noble and learned Lord has just said. Could he explain what the difference is if he says something as a law officer or as a Minister? What import does that have? What difference does it make in the context of this House and in the legal context?

[Lord Keen of Elie]

I am obliged to the noble Lord. I would never say anything in this House as a law officer. It is my role to give advice to the Government in my role as a law officer, but I do not speak in this Chamber in that role. I just wanted to make that clear. The other difference can be found in the list of ministerial salaries.

Clause 2 is not broadly drawn for the reason that all this legislation needs saving—a point made by the noble Lord, Lord Pannick, with reference to Clause 14(6). It is broadly drawn for two important reasons. First, any deficiencies that might arise within this domestic legislation upon our withdrawal can be corrected by the Bill powers under Clause 7. I appreciate that there are noble Lords who will want to address the scope of those powers under Clause 7 when we come to it, but that is the purpose of drawing Clause 2 in this way. During the period in which we have been an EU member state, we have brought into our domestic law a great deal of EU law, and not just expressed as EU-derived law in the form of the implementation of directives or the direct effect of regulations. We have already had reference to the scope of, for example, the Equalities Act; there is also the health and safety at work legislation. These are areas in which we know we find EU-derived legislation. It is therefore important that we bring all that together in order that it can be subject to the regulatory processes in Clause 7, subject of course to the debate that will take place with regard to the scope of the powers in that clause.

The second, rather more important, reason for treating all this legislation as part of retained EU law—I emphasise the connection between EU-derived legislation and what is defined as “retained EU law” for the purposes of the Bill—is that we have to ensure that retained EU law will continue to be interpreted consistently by our courts under Clause 6 of the Bill. This, I apprehend, is why the Bingham Centre, for example, said, while addressing the question of the scope of Clause 2, “If you’re going to narrow the scope, then you’re going to have to amend other parts of the Bill, in particular Clause 6”. That might be a different road to the same goal. All I would say at this stage is that the road we would take is to address this in the context of Clause 2 and the scope of that clause. In a sense, if Clause 2 were narrower, the powers under Clause 7 would be much broader. If we did not bring all of this into the definition of EU-derived legislation but wanted to be able to operate by way of regulations pursuant to Clause 7, there would be virtually no boundaries for the Clause 7 powers, whereas they are circumscribed by the definition that is brought into Clause 2 in the present form.

In my respectful submission, it would be odd if we were to take these categories out of Clause 2 and therefore find ourselves in a situation in which the construction of that law now differed from what it would have been while it remained to be interpreted by reference to the canons of construction that presently apply while we are a member of the EU. It is important that it should be part of retained EU law in order that we have consistency of interpretation. I do not take issue with the suggestion that an alternative route might be to narrow Clause 2 and then completely amend Clause 6, but that is simply not the route that the Government are taking here. I have sought to explain why we are taking this particular route at this time.

I hope that I have reassured noble Lords that Clause 2 is wide in its scope, but for a legitimate purpose. As I said, we will come in due course to address the question of whether and to what extent Clause 7 should complement those provisions with regard to retained EU law. In those circumstances, and emphasising again that we are listening to various considerations about how Clause 2 is formulated, I hope that noble Lords will see fit not to press their amendments. I am obliged.

16:30

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

I seek clarification from the noble and learned Lord. As I understand it, the words “so far as”, are intended to give Clause 2 limited range. Is this a useful touchstone, in so far as without the provisions we would have failed to implement our obligations under EU law? As I understand it, paragraphs (b), (c) and (d) address aspects of our domestic legislation that are designed to give effect, as they had to, to EU law, but only in so far as they are achieving that objective does Clause 2 have any application. Is that right?

[Lord Keen of Elie]

That is indeed my reading. The noble Baroness alluded to this earlier in her contribution. That is why I sought to emphasise the term “EU-derived” domestic legislation. It is the derivation of that aspect of a particular Act which is to be brought within the ambit of retained EU law for these purposes.

[Lord Pannick]

I thank all noble Lords who have contributed to what has been a valuable debate, including the noble and learned Lord, Lord Keen, in whatever capacity he was speaking to the House. The noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Mackay, emphasised the need for legal certainty not just in this clause but throughout the Bill, even though that harms the interests of the legal profession. I should have declared my interest as a barrister who may benefit from legal uncertainty. A number of barristers are present in Committee: the noble Lords, Lord Faulks, Lord Carlile and Lord Thomas of Gresford. There may be others, all of us no doubt thinking that this is the reverse of Thomas Erskine’s comment when he was asked how he had the courage to stand up in the court of Lord Mansfield. He replied that he thought of his children pulling at his robe and begging him, “Now, father, is the time to get us bread”.

The noble and learned Lord, Lord Keen, said that Clause 2 applies only to those sections of the Equality Act, for example, which were enacted for a specified EU purpose or have a relevant EU law connection. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave an explanation of that, and the noble and learned Lord, Lord Mackay of Clashfern, agreed with that approach. That is very helpful in limiting the scope of Clause 2. However, it raises a problem, to which the noble Baroness, Lady Taylor, alluded. If Clause 2 applies only in relation to those parts of the statute which were enacted for a relevant EU purpose, there is still a problem of legal certainty, because there will be disputes as to which parts of the Equality Act—or other legislation—satisfy those criteria. I must say that the criteria in Clause 2 are far from clear. They operate by reference to the purpose of the legislation or whether the legislation relates to EU material. So there may still be a problem here.

I have two suggestions for the noble and learned Lord. First, if as he said, and I entirely accept what he said, Clause 2 is intended to apply only to those parts of the enactment—the Equality Act, or whichever Act—that are linked to EU law or have an EU purpose, the Government might wish to bring forward an amendment to Clause 2 on Report to make that clear on the face of the Bill. The second suggestion is that the noble and learned Lord might wish to consider whether any further clarity can be provided as to how the courts are supposed to apply this section-by-section approach and identify the purpose of the relevant section or whether it relates to EU law.

I noted the very helpful comments of the noble and learned Lord, Lord Keen, on the status of retained EU law and on the supremacy of retained EU law. As he said, we will come to those matters next week, and there are amendments addressing them. I associate myself with the comments of the noble and learned Lord on the valuable contributions by Professor Paul Craig of the University of Oxford.

This has been a helpful debate in illuminating the Government’s intention. I will reflect, and I am sure the Constitution Committee will want to reflect, on what the Minister has said and on the other contributions. I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

Amendment 16

Moved by

[Lord Wallace of Tankerness]

16: Clause 2, page 1, line 12, after “passed” insert “and commenced”

[Lord Wallace of Tankerness (LD)]

My Lords, the amendment stands in my name and that of the noble Lords, Lord Foulkes, Lord Adonis and Lord Dykes. This is very much a probing amendment and I do not intend to detain the Committee long, as the issues are quite clear.

Clause 2 refers to EU-derived domestic legislation that has,

“effect in domestic law on and after exit day”,

and then goes on to explain what EU-derived domestic legislation means. If we then fast forward to Clause 14, we see that an enactment,

“means an enactment whenever passed or made”.

We are trying to get some certainty into what is meant by that—and I shall come on more specifically to enactments of the Scottish Parliament.

We are seeking to probe what is intended by this. For example, if an enactment has been made but the commencement of a particular provision is not until a date post exit day, what is the status of that? Is it intended to refer only to those enactments when an Act has been made but there has been a commencement before exit day?

Let us look specifically at Acts of the Scottish Parliament—Acts of the Welsh Assembly may well come into a similar category. Paragraph 100 of the Explanatory Notes, which refers to similar phraseology in Clause 5, states that,

“an Act is passed when it receives Royal Assent”.

The Scotland Act 1998, Section 28(2) states:

“Proposed Acts of the Scottish Parliament shall be known as Bills; and a Bill shall become an Act of the Scottish Parliament when it has been passed by the Parliament and has received Royal Assent”.


So there are two stages—passed by the Parliament and then receiving Royal Assent. Amendment 342, in my name and that of my noble friend Lord Thomas of Gresford, seeks to give clarity that this will be an enactment when it has received Royal Assent.

There is an argument that it should be an enactment when it is passed by the Scottish Parliament or the Welsh Assembly. I took the view that it was preferable to make it after Royal Assent because there are some reasons why between being passed by the Scottish Parliament and receiving Royal Assent it could be derailed. As the noble and learned Lord, Lord Keen, as Advocate-General for Scotland will know only too well, in whichever capacity he is appearing at the Dispatch Box, he has powers under Section 33 of the Scotland Act to refer to the Supreme Court a Bill or any provision of a Bill which he believes may not be within the legislative competence of the Scottish Parliament. He has to do that within four weeks of a Bill being passed by the Scottish Parliament, and then it would be a matter for the Supreme Court as to how long it took. So you may have an enactment, or a piece of legislation—let us put it neutrally like that— which has actually been passed but may go to the Supreme Court and the Supreme Court may strike it down, so it may never actually become law. That is why I took the view that, in trying to determine when an enactment becomes an enactment, it should be in the case of Acts of the Scottish Parliament when it receives Royal Assent.

To some extent this is academic. If you were to challenge me and ask me to give an example, I probably could not—but I am sufficiently acquainted over many years with the laws of unintended consequences to know that something will happen. You can bet your life that this issue could well come up and, rather than have the matter taken through the courts, it would be preferable, for certainty purposes, to put in the Bill when an enactment of the Scottish Parliament actually becomes an Act. The preference would be for when it receives Royal Assent.

This is a probing amendment but, if it is the noble and learned Lord who replies, I hope that he will accept that there is an issue here. The wording of our amendments may not be the ones that the Government would prefer, but perhaps he will accept that there is an issue here and the Government will bring forward their own amendment to clarify the point so that, at some future date, we do not have a situation where our learned friends at the Scottish Bar make lots of money out of disputing this, and we can resolve this. It is not a major point but it is one that merits clarity, and I hope that we can get a positive response to these amendments. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, I am really grateful to the noble and learned Lord, Lord Wallace of Tankerness, himself a former Advocate-General, for moving this amendment. In the light of what he said, all I can say is that I agree with his every word.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord and the noble Lord not only for explaining the amendment but for their endorsement of it.

In responding to Amendments 16, 17 and 342, I start by reaffirming our view that Clause 2 is an essential provision for providing certainty and continuity regarding our law after exit day. I think that that is plain to all noble Lords. I shall then say a little more about why Clause 2 must stand part of the Bill. This clause, along with Clauses 3 and 4, delivers one of the core purposes of this Bill: maximising certainty for individuals and businesses when we leave the EU by ensuring that, so far as is practical, the laws that we have now will continue to apply. In that respect, Clause 2 preserves the domestic law that we have made to implement our EU obligations; we have touched on that already.

More particularly, on the point raised by the noble and learned Lord in this regard, Amendment 342 seeks to clarify that Acts of the Scottish Parliament are included within the clause only if they have received Royal Assent before exit day. I suspect that Amendment 16 also seeks to provide clarity on that same point. I am grateful for the opportunity to clarify any uncertainty that there may be here. Clause 2(2) states that,

“‘EU-derived domestic legislation’ means any enactment”

that is described in that subsection. Clause 14 defines the term “enactment” to include an enactment contained in an Act of the Scottish Parliament. An Act of the Scottish Parliament must have received Royal Assent; until that time, it is a Bill. Section 28(2) of the Scotland Act 1998 provides for this. So an Act of the Scottish Parliament that has only been passed and not received Royal Assent does not fall within this definition, and would not be categorised as EU-derived domestic legislation for the purposes of this Bill. I believe that the noble and learned Lord rather suspected that this might be the case; his concern seemed to be one of certainty as regards the drafting.

The same applies in relation to Acts of the UK Parliament. The reference to “passed” in Clause 2(2)(b) is therefore a reference to the purpose for which the enactment was passed, not whether it was passed. In that context, I venture to suggest that Amendments 16 and 342 are unnecessary.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. He does get my point that it is for clarity; in Section 28 of the Scotland Act, there is a distinction made between being passed and Royal Assent. It is the word “passed” that appears in Clause 14(1) and the noble and learned Lord knows as well as anyone that, when statute uses the same word, it may—not unreasonably—have the same interpretation. Yet, a Bill “passed” by the Scottish Parliament is not the same as “enacted”. Simply, does it really go to the heart of this Bill that the Government could not bring forward an amendment just to make it clear beyond doubt and, therefore, not allow unnecessary litigation at some stage in the future? Because you can bet your life that something will come up when someone finds some clever point.

16:45

[Lord Keen of Elie]

I am obliged to the noble and learned Lord. I do not have any red lines so far as Clause 2 is concerned in this context. It appears to me that if there is concern about a lack of certainty, we can take that into consideration, and we will do so in time for Report. I do not indicate that we will bring forward any amendment in regard to this; it seems to me, as the noble and learned Lord will appreciate, that context is everything. We have to read the provision and the use of “passed” in Clause 14 in the context of what is said in Clause 2(2), but I hear what he says. I am not seeking to strike it down, as it were, at this stage; I am merely seeking to explain the approach that we have taken to this issue and why we consider that, on the face of it, Amendments 16 and 342 are unnecessary.

Amendment 17 seeks to mirror the language of Clause 3 in terms of the cut-off point for inclusion within the scope of the clause. Clause 2 of course works in conjunction with Clause 3, which converts direct EU legislation into domestic law. Both clauses take a snapshot of the law that is in place immediately before exit day. EU-derived domestic law will fall into the scope of Clause 2 if it has been enacted before exit day—that is, if it can be said to be on the statute book at that time. There is of course a different test employed for direct EU legislation to be retained under Clause 3, because direct EU legislation must be operative within UK law “immediately before exit day”, as defined in Clause 3(3). That is why there is a distinction between the two clauses; they serve distinct purposes.

As I say, we are listening and we will consider further the point made by the noble and learned Lord and by the noble Lord, Lord Foulkes. Having given an explanation of the Government’s position, I hope that, at this stage, they will see fit to withdraw or not move these amendments.

[Lord Wallace of Tankerness]

I am very grateful to the noble and learned Lord for his response and his willingness to look at this and take on board the comments made. A simple amendment could be made that in no way detracts from the purpose of this Bill; if anything, it would add to that purpose in terms of legal certainty. Using the word “passed”, which, from what the noble and learned Lord said, has a different meaning in two Acts, is not helpful. I do not think the amendment in any way departs from or mitigates what the Bill seeks to achieve and I therefore strongly encourage the noble and learned Lord and his colleagues to bring forward a simple amendment to provide legal certainty. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17 not moved.

Debate on whether Clause 2 should stand part of the Bill.

[Lord Adonis]

My Lords, I do not intend to speak to whether Clause 2 should stand part of the Bill.

Clause 2 agreed.

Amendment 18

Moved by

[Baroness McIntosh of Pickering]

18: After Clause 2, insert the following new Clause—
“Status of EU directives adopted, but not implemented, before exit day
(1) EU directives adopted by the EU before exit day remain binding, as if the United Kingdom had not left the EU.(2) In implementing any EU directive covered by subsection (1) after exit day, a Minister of the Crown may use any power set out in the European Communities Act 1972 as if that Act had not been repealed.(3) If, through implementing a directive under subsection (2), a situation arises which would be considered a deficiency had it arisen in retained EU law, a Minister of the Crown may use any of the powers set out in section 7 of this Act to remedy that situation as if that directive had been implemented before exit day.”

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak to Amendment 18 in my name before the Committee this afternoon. I refer especially to page 24 of the Explanatory Notes, which states, in paragraph 76 on Clause 2(1):

“This will include legislation that has been passed or made but is not yet in force”.


The reason for my introducing and speaking to this probing amendment—I recognise, as Ministers have said previously, that this is a facilitating Bill—arises from the debate at Second Reading, where it was identified that a number of directives are coming forward and commitments are being discussed and agreed in both the European Parliament and Council of Ministers that will be agreed but not transposed into British law before 29 March 2019. I am not sure whether my noble and learned friend the Advocate-General will reply to this amendment, but I hope that he will see it as a tidying-up exercise that is designed to be helpful.

The purpose of the amendment is to facilitate the transposing into UK law of directives that fall into this category which have been agreed by the relevant ministries in Brussels, and in co-decision between the European Parliament and the Council of Ministers, but have not yet been transposed into UK law. This follows on from the debate at Second Reading, where the issue was discussed in particular by the noble Lord, Lord Kakkar, several noble Lords on the Liberal Democrat Benches, myself and a number of others. For example, the drinking water directive will be completed and will likely be transposed into UK law before we leave on 29 March 2019. It forms part of the price review that Ofwat is conducting, which will also conclude in 2019.

However, a further series of environmental directives does not fall into this category, including the so-called mother directive—the EU water framework directive—the bathing water directive and the waste water directive. Given the current timetable for the revisions being discussed in Brussels by the European institutions, it is quite likely that the directives will be agreed in the very month that we leave the European Union.

The purpose of this amendment is simply to clarify whether that would leave the door open to the directives being transposed at a later date, thereby guaranteeing the environmental protections that water companies themselves might wish to adopt, and which the Government and indeed all of us as consumers would wish to see implemented. So my question to the Minister is simply: is it the Government’s wish to facilitate the transposing of directives that are left in this halfway house into UK law after 29 March 2019, and in those circumstances would they welcome this amendment?

[Lord Wigley (PC)]

I support the amendment of the noble Baroness, Lady McIntosh, which seeks to clarify the status of EU directives which will be “adopted, but not implemented” on the day we exit the EU. The Government have repeatedly stressed that the purpose of the Bill is to provide legal certainty. Whichever side of the Brexit debate we take, clearly, that is a worthy and necessary objective. That being so, I am truly baffled that in this instance the Bill totally fails to give that clarity. Everyone affected or potentially affected by EU legislation that has been adopted but not implemented needs to have absolute certainty as to where they stand.

Amendment 18, if passed, would allow Ministers to treat EU directives adopted before exit day to stand, for those purposes, as if the UK had not left the EU. I understand from a House of Commons briefing that no fewer than 23 directives have already been published with implementation deadlines which fall after 29 March 2019. Several of these would enhance the lives of UK citizens. For example, one is aimed at strengthening restrictions on firearms, which are currently permitted to move freely within the European single market. If the Bill stands unamended, can the Minister clarify whether firearms will be controlled when they cross the north-south border in Ireland, for example? Another such directive aims at limiting the exposure of employees to dangerous substances in the workplace, such as carcinogens and mutagens. I will not elaborate but clearly there is an arguable case for saying that such safeguards should be part of UK law. Even more so, there is a crying imperative that people know where they stand on such matters.

[Lord Pannick]

My Lords, I am doubtful about this amendment for two reasons. The first is that the whole purpose of the Bill is to ensure that a snapshot of our obligations under EU law is transposed into domestic law as at exit day. If, as the amendment suggests, retained EU law contains the directives which are not yet in force, the purpose of the Bill will not be accomplished—something more will be read into EU law. However, it is not simply a technical matter; it is also a question of uncertainty. If the amendment is included in the Bill, one will not know at exit day the scope of retained EU law, as that will depend on what happens in Brussels thereafter. A directive which has been adopted but has not yet come into force might be amended before it comes into force, or it might never come into force. Therefore, I am very doubtful that legal certainty is accomplished by this amendment or that it is consistent with the objectives of the Bill. I entirely understand that it may be desirable to include within English law matters of this sort but it is certainly not consistent with the objects of the Bill.

[Lord Lea of Crondall (Lab)]

My Lords, perhaps I might check that, in interpreting the clause as it now stands, it is not possible for there to be a freeze on implementation by a particular exit day, whereby Ministers can cherry-pick the pieces of legislation they want to take through. That was not the intention. Can the Minister comment on that possible consequence of the exit date?

[Lord Liddle (Lab)]

My Lords, for many of us, this is a seminar and we are hoping to learn quite a lot from noble and learned Lords in the course of the Committee proceedings. We are dealing with areas that certainly I have very little grip on. Perhaps I may probe the relationship between this issue and the transition agreement being negotiated in Brussels at the moment, because I do not understand it. As I understand the transition agreement, presumably we will commit to bringing these admirable pieces of legislation that the noble Baroness, Lady McIntosh, has referred to into our law. If the transition agreement requires that, does that mean that everything passed during the transition period will acquire the status that it would have had on 29 March 2019 and will all become retained law? How does the Bill deal with that point and the relationship to the transition agreement? I am sorry if this is all very ignorant but it seems to be a very relevant point.

17:00

[Lord Adonis]

My Lords, I am grateful to my noble friend. For those of us who are not lawyers and are uninitiated in the complexities of this law, what does “implemented” mean? As I understand it, once the Council of Ministers adopts a directive, it is then the responsibility, under the European Communities Act 1972, of member states to implement it. Presumably the question is: what duties lie on Her Majesty’s Government and Parliament to implement directives which have been adopted by the Council but which would, in the normal course of events, be implemented over a period that might or might not span beyond 29 March next year? I assume that that becomes a very important issue in the scenario that my noble friend Lord Liddle has just referred to, where, in the “implementation period”, the United Kingdom is undertaking to abide by the evolution of European law in the making of new directives over that period. I am not sure whether I should call him the non-Advocate-General for Scotland, but could the noble and learned Lord, in whichever capacity he is speaking to us this afternoon, give us a view on this matter?

[Lord Brown of Eaton-under-Heywood]

My Lords, further to the point made by the noble Lord, Lord Liddle, as I have said before, this Bill deals with a crash-out situation in which there is no transitional period. If there is a transitional period, a good deal of this will have to change or will require some alteration—the point made by the noble Lord, Lord Liddle. As far as the noble Lord, Lord Adonis, is concerned, once the directive is adopted, the member states are then given a particular period—generally two years—in which to implement it, and sometimes they are late in doing it. This Bill surely ought to deal with the two situations, including the one where the implementation date has passed, in which case we would perhaps be in a rather different situation from that which assumes that the implementation date has not yet arrived when we leave, and so a different answer might be given as to how you deal with this position.

[Baroness Young of Old Scone]

My Lords, I want to add to the voices of those who have said that there is a lack of clarity and point to a specific example that raises some questions: the circular economy package. We, along with our European colleagues, have been working on this since 2014 and it is due to be agreed shortly. There is legislation to amend six EU directives on resource use, all of which are incredibly important both domestically and internationally. That includes things such as the waste framework directive; the packaging and packaging waste directive, which has a big impact on the Government’s commitment on plastics; the landfill directive; and directives on end-of-life vehicles and batteries in electrical and electronic equipment, for example, all of which will be hugely germane to our potential export of motor vehicles and other electrical equipment. We will be approaching exit day with the package enshrined in EU law, but we will not have had time—nor indeed will many member states—to implement it.

For me, this package is important for a number of reasons. First, there are hugely important international commitments that we need this legislation to fulfil. Secondly, we have spent an awful lot of time on it and have been quite effective in making and shaping it to ensure that it fits with our requirements, as well as being effective for the environment. Thirdly, one assumes that we are going to keep a car industry going in this country, and I doubt that we can maintain our trade, or the levels of exchange of components for the automotive industry, across national boundaries if we do not adopt similar standards.

I am concerned about the “snapshot” mentioned by the noble Lord, Lord Pannick. I understand that it is required, but if that snapshot will leave us with a great need for this legislation to go forward but an inability to make it happen, then I must press the Minister on how he envisages that such a situation will be dealt with. It would have a poor effect not just on the environment but on our ability to trade.

[Lord Deben (Con)]

My Lords, I draw the attention of the House to my declaration of interests. I declare an interest in the question of waste and I would like to follow on from the noble Baroness.

I am inclined to follow the comments of the noble Lord, Lord Pannick, in dealing with this amendment. My problem with the snapshot concept—although it is the concept—is that it is rather fuzzy at the edges. Unless we think carefully through this, we will find that if we leave the European Union we may have signed up to obligations which we have not had time to carry through but which we intended to carry through. We may also sign up to obligations which, perhaps in retrospect we did not intend to carry through. However, that is unlikely. We may also have signed up to obligations where we had not worked out how we were going to carry them through. So there is bound to be uncertainty at this stage.

I emphasise what the noble Baroness has said: we have worked extremely hard across the board on a number of packages, particularly those concerned with the environment. Her Majesty’s Government have been enthusiastic about most of the elements that that contains. The noble and learned Lord who has replied to the previous two debates has been extremely helpful, not only in explaining to the House where the Government are but in giving us real hope that they will look carefully at the real questions we have raised. It is not a question of whether or not you are in favour of Brexit but of how we get this right. As the Minister has been kind and generous in that way, I hope he will help us to see what we should do. I say to my noble and learned friend that I do not think we should do this, but it is clearly something we have got to do if people are to know where they will stand.

[Lord Pannick]

The noble Lord is undoubtedly right that there will be instruments in Brussels to which we have contributed and which we would wish to incorporate into domestic law. This Bill does not prevent that. It is designed to provide the best snapshot possible, and Parliament is perfectly entitled to—and no doubt will—adopt many other later instruments and incorporate them in appropriate form into domestic legislation.

[Lord Deben]

I agree with the noble Lord, Lord Pannick, on that. However, the problem comes when an agreement is in Brussels and has been agreed by us but the implementation date comes later. That is the part I am particularly concerned with.

I am also concerned to take the opportunity to say to my noble and learned friend that one of the ways in which this Bill can be more readily acceptable is for the Government to be clear with the House. If there were such circumstances, would the Government be prepared to say now that they would seek to implement those things to which they had signed up in advance in a form they would choose? That is not an unreasonable thing to ask the Government to do. Otherwise we will go through this period—it seems as though it will go almost to the end before we know what is going to happen—of negotiating, discussing, agreeing and indeed voting on some of these matters, and no one will know whether, having voted for them, we were then willing to accept them into our own system and law and implement them, having signed up to them.

It would be helpful for all of us who are trying to work these things out and trying to run businesses to remove that uncertainty by committing the Government to say that they will implement what they have signed up to, in a form which they may choose, but under British law.

[Baroness Smith of Newnham (LD)]

My Lords, I support the amendment and declare my interest as being employed by Cambridge University; essentially my day job is teaching European politics. As the noble Baroness, Lady McIntosh, and the noble Lord, Lord Wigley, have pointed out, this amendment fills a gap in the proposed legislation, although I understand that it is probing in nature. At present, Clause 2 talks about saving EU-derived domestic legislation—that part is clear—while Clause 3 looks at incorporating direct EU legislation. However, the gap lies in EU legislation which has been agreed or adopted, and here I disagree with the noble Lord, Lord Pannick.

If the legislation has already been adopted by the European Union it will not then be amended, so the issue is that if the 28, including the United Kingdom, have already agreed legislation but the UK has not yet transposed it, that is legislation which we would have expected to be in place at the snapshot point of 29 March 2019. If the legislation has not been transposed by then, there is a question of where we are on 30 March 2019. If, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, it is simply a question of adopting things later, that is one thing for a crash-out Brexit, but if there is going to be a transition period and we are supposed to be absolutely at one with the EU 27 on the day we leave, surely that includes legislation that has been adopted but which we have not yet transposed and which we therefore have a duty to transpose.

[Lord Mackay of Clashfern]

My Lords, it is fairly clear that this Bill already has enough to do in trying to deal with the situation of withdrawal, and it cannot be right that it should take account of any transition period or implementation period, whatever you like to call it, until we know a good deal more about it than I do at the moment. That ignorance is possibly shared to some extent by other noble Lords.

On this point, the true position is that once a directive has been adopted by the European Union with a period for implementation by a member state, the obligation on that member state is to bring it into law in its own domestic arrangements within the period stated. The directive therefore does not become part of the domestic law of that member state until its implementation before or by that date. This Bill is intended to deal with the state of the law on the day of our withdrawal and therefore strictly speaking such directives, however desirable they may be, are not really part of our domestic law any more than an Act which has been passed but not commenced is part of our domestic law. I have a fair amount of experience of that happening.

The situation is clear so far as what this Bill should do, but so far as what my noble friend Lord Deben wants, that is another matter. It is perfectly reasonable that the Government should have a policy on that if they want it.

[Baroness McIntosh of Pickering]

Is my noble and learned friend saying that the United Kingdom Government should absent themselves from all legislation and all the directives that are being discussed, whether it is the EU circular waste package or the water framework directive? I believe that the noble Lord, Lord Wigley, referred to 23 directives—I am most familiar with the environmental ones—which fall into the very narrow category where there is every expectation that the UK Government are prepared to sign up to the commitments. However, because the Prime Minister has set an arbitrary date for us to leave, we will not be in a position to implement them. Is it the case that even if we agree them in March 2019 and it is the wish of the Government to implement them, because of the arbitrary date, we will not be in a position to transpose them?

[Lord Mackay of Clashfern]

The problem about the arbitrary date is that it is rather an important one because it is when we will cease to be liable to obligations under EU law unless they are made part of our law by this Bill. The problem is that a directive which has been adopted but not yet put into effect, but with the obligation to put it into effect still running, could in some cases last for as long as two years. That would greatly alter the clarity of the Bill in the meantime. If the Government want to implement one of them there is absolutely no reason why they should not. They will have plenty of legislative power and so long as they can get parliamentary time they can do so. That is a matter of policy that my noble friend has referred to. It is a perfectly reasonable way of dealing with this sort of point.

17:15

[Lord Deben]

Does my noble and learned friend agree that my noble friend Lady McIntosh has raised an issue that probably should not be answered in this way, but provides a difficulty for the Government that would be overcome if they said, when they had agreed and supported a particular decision, that they would then carry it out in whatever way they thought was the most sensible? That means that we can go on discussing and not be left in some sort of oblivion.

[Baroness Ludford]

Before the noble and learned Lord answers that point, I add a further complication. Whether we agree to a directive or not, if it was adopted by qualified majority voting it would still be adopted with an obligation for the UK to implement it. That does not quite solve the issue. What is raised is surely a very valid issue. It may not strictly come within the definitions in the Bill, but there is still a legal obligation if a directive has been adopted at EU level, whether we agree to it or not.

[Lord Mackay of Clashfern]

The legal obligation would cease on Brexit day. That is the situation. Unless something has been implemented by that time it is not strictly part of our law. On deciding what is to happen in the future, as far as I am concerned, there is enough to decide at the moment, but nothing will harm the Government if they give some indication of what they would do with instruments that have been adopted but not yet implemented, although, at the date of Brexit, we were obliged to adopt them on some future date.

[Lord Adonis]

Does the noble and learned Lord think that there is a distinction between those directives that we have agreed to where the implementation date is before or after 29 March 2019?

[Lord Mackay of Clashfern]

If it is implemented before the 29th it is part of our law.

[Lord Adonis]

What if the obligation to implement them is before that date, but we have not fulfilled that obligation?

[Lord Mackay of Clashfern]

The question does not arise if they have not been adopted before. The amendment deals only with directives that have been adopted before Brexit day and, even if they are not part of our law, whether they should be admitted, which the Bill could do. The problem is that that might delay the finalisation of this as an Act in force for some considerable time.

[Baroness Young of Old Scone]

I would like some technical clarification on this. My understanding of the example I gave is that Europe will change the standards for packaging and packaging waste, the landfill directive, end-of-life vehicles, batteries, and electrical and electronic equipment and the old standards will no longer hold, except in Britain. Quite frankly, I am not sure that that is a viable way forward. We will continue to apply standards that everyone else has abandoned immediately on exit day if we do not take forward the implementation of that directive.

[Lord Mackay of Clashfern]

I am beginning to find myself answering questions that I should pass on to my noble and learned friend. So far as I am concerned, it is unlikely that all the member states, if they have plenty of time for implementation, will, except for us, have implemented them on exit day.

[Lord Davies of Stamford (Lab)]

My Lords, I am still not quite convinced by the explanation of the noble and learned Lord, Lord Mackay. Clearly, if a directive has not completed its legislative process by 29 March 2019, there is no question about it: whatever happens to it later on is nothing to do with us and it does not in any way enter English law. Equally, if a directive has been assumed into domestic law and been implemented, there is no doubt that it is part of English law. However, where a directive has completed its legislative process, has been implemented into English law in the normal way but has not come into force because it contains a provision under which it comes into force only at a certain date after 30 March, the English law—or, for that matter, the Scottish law—has already been altered and adopted the new provision. Those provisions enter into force at a certain date subsequent to 30 March but without any further change in the corpus of statute because the measure is already provided for. Surely, in those cases, that directive remains in force in English or Scottish law in the normal way. Even though it had not reached the point at which it would come into effect on 29 or 30 March, it would nevertheless be part of the corpus of law in all the union countries.

[Lord Mackay of Clashfern]

If it has become part of our law, even if it is postponed, it is subject to this Bill. If it has not come into our law, it is not part of this Bill. I shall not answer any more questions.

[Baroness Bowles of Berkhamsted]

I would quite like to complicate matters a little further. It is unfortunate that the word “snapshot” was used, because, if we look at the way in which European legislation comes into force and effect, we see that it is a bit more like a movie in that it keeps on going. Certainly, we may well have implemented some things and they will then come into force, but it would not be on a single date beyond because lots of delegated Acts and implementing regulations would come in progressively over a period of time. I am curious as to what happens when we are straddling that. Will we then take the implementing regulations and delegated Acts on something that we have already adopted into our law, or will we make up those ourselves?

[Baroness Hayter of Kentish Town (Lab)]

The noble and learned Lord, Lord Mackay of Clashfern, says that he is confused about the transition; my worry is that the people on the Bench in front of him remain confused about what a transition period means—but let us put that to one side.

I want briefly to broaden the discussion to regulations—I know that the amendment refers to directives, but it is probing and there is an important issue here which Ministers may have heard. The clinical trials regulation was mentioned at Second Reading. Like many of the measures that we are discussing today, that would have been adopted but not implemented, either because it was complicated or it took a lot of work to get everyone lined up to it—so it would not have reached its implementation date by the time we left. It might well reach that date during the transitional period—which raises another question and, probably, another Bill. If it is a standstill only on measures that have come in by the day we leave, there will be important issues to address such as the clinical trial regulations and those others that we have heard about today. They will not count as retained law, leaving us reliant on regulations that rapidly become obsolete—those relating to cars I know less about, but certainly in respect of those relating to clinical trials it would end our ability to participate. All such regulations are about not just anonymity but the way data are held. It will happen very quickly: if we are not on the same basis as the rest of Europe, our ability to be involved in those could end quite promptly. That is obviously important to patients, but also to researchers and, indeed, the pharmaceutical industry.

I wrote to the noble Lord, Lord Callanan, on 19 January and he replied very rapidly on 26 January. As we have heard today, he confirmed the Bill’s approach, which will bring over only regulations actually operative as we leave. That would exclude these clinical trial rules, for example, although we agreed them back in 2014. The letter that the noble Lord kindly wrote to me makes smoothing comments, if you like. It says, “Yes, we recognise the importance of close co-operation, we want UK patients to have access to innovative medicines, for which we need to be part of the same system, and we want the UK to be one of the best places to do science”. I turned over the page expecting the Lord Deben response, which would be to say what we are going to do about it. Unfortunately, at that point the letter stops. It says that we will discuss with the EU how to continue to co-operate in business trials but it fails to look at what will be needed, which is, I fear, a legislative process to make that happen.

[Lord Deben]

Will the noble Baroness be kind enough to make a distinction between these things? It seems to me that this is not a matter to discuss with the EU. The British Government could perfectly well say that where they have signed up to something already, they will in fact implement that. They could do this about regulations and directives if they wished to. They could do that in advance and would not have to say that they would have to discuss it with the European Union. That would help all of us and be an earnest of the Government’s good will.

[Baroness Hayter of Kentish Town]

I agree: the Committee will be pleased to know that, had the letter ended like that, I would not be on my feet today. These are important measures for our international co-operation, and if the Government would say, “Yes, this is something that we are willing to do”, that would take us forward. I hope that the noble and learned Lord may be able to give us that assurance as he responds.

[Lord Keen of Elie]

My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

[Baroness Ludford]

Nobody, I think, has questioned that. We are talking about directives.

[Lord Keen of Elie]

That is what we began talking about but the noble Baroness, Lady Hayter, for example, has referred to regulations. I will come on to address the point she made, but regulations have direct effect and if a regulation has direct effect by exit day it will form part of retained EU law. Directives have no direct effect in the domestic law of a member state. Directives have to be the subject of implementation and in that regard a transition period is given to member states for the implementation of a directive. There may be directives that have been adopted prior to the exit date which have a transitional period that will expire by the exit date specified in the Bill. In that event, the Government have indicated that they will seek to implement those directives that require implementation by a transitional date before the exit date. Therefore, they will become part of retained EU law because they will have been implemented in our domestic law.

17:30

There may also be directives that have been adopted which have not been the subject of implementation by the exit date because the transition period extends beyond the exit date. Those will not, therefore, have been taken into our domestic law and will not form part of retained EU law at the exit date. So, yes, there may be directives that have been adopted but not implemented by the exit date, and those directives will not form part of our domestic law. If, however, a directive contains matters that the Government consider appropriate to form part of our domestic law, there is no reason why the Government should not then proceed to enact appropriate domestic legislation to take into our domestic law those very matters.

[Lord Pannick]

Perhaps I might suggest to the Minister, and ask him to confirm, that there will also be directives that have passed their implementation date and have not yet been implemented in domestic law, but are sufficiently clear and precise that they confer individual rights under EU law and, therefore, to that extent they will be part of retained EU law.

[Lord Keen of Elie]

With respect, that is a slightly different point. First, the Government are committed to implementing in domestic law those directives which have a transition period that expires before the exit date. There are, however, circumstances in which a directive may have direct effect in a question between an individual and the state but has not been implemented in domestic law. That is subject to a determination by the Court of Justice of the European Union or, indeed, by our own courts. In circumstances where a directive has not been implemented by the end of the transition period and has direct effect as determined by the courts of justice, and that has been determined prior to the exit date, that will be brought into domestic law by way of Clause 4. That is the point of Clause 4 in that context.

Where a directive has been adopted before the exit date but has an implementation period which expires after the exit date, and has not been implemented in domestic law by the exit date, that will not form part of our domestic law and therefore it will not form part of EU retained law for the purposes of the Bill.

[Baroness McIntosh of Pickering]

Both my noble and learned friend the Minister and my noble and learned friend Lord Mackay have indicated that the Government could choose to implement directives falling into that category if they wished to do so. My question to the Government is: what is the legal basis for doing so? My understanding is that there is not a legal basis at the moment, which is why I tabled this amendment.

[Lord Keen of Elie]

There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside. The point is more central than that: directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after the exit date.

[Lord Wigley]

Following this is fairly complicated, is it not? To add to that complication, what will be the position on devolved matters—such as environmental matters, which are to a very large extent devolved—where the implementation may be on different dates in different devolved regimes?

[Lord Keen of Elie]

We have to be clear here about the distinction between implementation and application. Essentially, there is only one date for implementation. That is when we implement the directive into our domestic law. There may be situations—and if I misunderstand the noble Lord’s question, I am sure he will tell me—in which there is a directive, or indeed a regulation, that is adopted into domestic law but which applies only at a date after the exit date. There are examples of regulations as well, where we accept that the regulation has come into domestic law but its actual operation is deferred, perhaps until 2020. That regulation or that provision will form part of our domestic law at the exit date, even though the operative provisions come into force only after the exit date.

[Lord Wigley]

I do not want to overlabour this point, and perhaps it is one that the Minister could look at between now and Report in case there is any validity in what I am raising, but since it is by instruments that are passed in the National Assembly for Wales or in the Scottish Parliament that some of these will be put into force, there will quite likely be different dates for those purposes, and that could have a material effect. Some may fall one side and others the other side of 29 March 2019.

[Lord Keen of Elie]

If I understand the noble Lord’s point, he is suggesting that we may have a situation in which a directive that has been adopted is implemented in England or in Wales or in Scotland but on different dates.

[Lord Wigley]

Yes, indeed, or it may have failed to have been implemented within the timeframe in one area and therefore does not get implemented but does get implemented in another area.

[Lord Keen of Elie]

In that event, it will be by reference to the exit date that we determine whether or not it forms part of the domestic law.

[Lord Hannay of Chiswick (CB)]

I wonder if the Minister could deal with one category which I do not think he has dealt with yet; that is, a directive that is adopted before the exit date but whose implementation date is after the exit date but within the standstill period which the Government are currently negotiating in Brussels—and which, it is no secret, will involve the Government accepting that all the obligations of European law will continue to apply during that period.

[Lord Keen of Elie]

The implementation period is a wholly distinct issue from what we have to address in the context of the Bill. The implementation period has yet to be negotiated. The outcome of that implementation negotiation has yet to be determined. In the event that we agree an implementation period, clearly there will have to be further statutory provision—a further Bill—addressing our rights and obligations during that implementation period, and it may be that that further Bill will amend this Bill with regard to the effect of the exit date on further EU legislation, whether in the form of regulations or directives, after 29 March 2019. But that is not an issue for this Bill. This Bill is dealing with the situation at exit, subject to the fact that, if there is a negotiation, things may change.

[Lord Adonis]

For those of us who have not been following the minutiae of the Government’s announcements, can the Minister say that it is an absolute commitment on the part of the Government that directives that have been adopted and for which the implementation date falls before 29 March next year will be implemented?

[Lord Keen of Elie]

My Lords, my understanding is that the Government are determined, and have the present intention, to implement directives that have been adopted and which have an implementation period that expires before the exit date. I cannot give an absolute assurance to that extent but that has been and continues to be the Government’s position. Indeed, to put it another way, we will continue to perform our obligations as a member of the EU, as we are bound to do by the treaty provisions. One of our obligations is to implement directives that have been adopted in Europe within the implementation period or by the transition date that is set out.

[Lord Falconer of Thoroton (Lab)]

I express my gratitude and admiration for the way that the noble and learned Lords, Lord Mackay of Clashfern and Lord Keen of Elie, are bringing lustre to the Scottish Bar in the way that they are answering all these questions so brilliantly and with such trouble. My inquiry relates to a directive requiring implementation that has not been implemented, where there are certain rights that would be directly enforceable by an individual and there is no court case that says that. Can you go to court afterwards and say, “We can enforce that because there was a directive prior to the date of exit”? No court has said that it was directly enforceable; you could argue subsequently that if you win, you win—this would be in the domestic courts—and can say it is enforceable. Would that be covered?

[Lord Keen of Elie]

No, that would not be covered, because in those circumstances there would have been no crystallisation of the direct right prior to the exit date. That is our position with regard to that point—but I am obliged to the noble and learned Lord for his acknowledgment that we are answering questions as they are posed. I was rather hoping that my noble and learned friend Lord Mackay of Clashfern might actually come forward to the Front Bench and allow me to retire to the second tier in order that this matter could be dealt with even more cogently than I am able to do.

I return for just a moment to the actual amendment. I have sought to emphasise—clearly, I hope—why the amendment is not appropriate in the present context. It would simply take away from one of the principal purposes of the Bill, which is to determine that there is an exit date—a cut-off point—when we will determine the scope of our own domestic law. I can quite understand the point made by the noble Baroness, Lady Young, about emerging provisions in the EU that have been worked on for many years and that would bring about appropriate and attractive standards for various aspects of our life in the United Kingdom—but, of course, it would be perfectly open to this Parliament to decide, in light of what has already been agreed in Europe, that it would be appropriate to have these standards in our domestic law, and we will have the means to do that. It is just that they will not form part of retained EU law for the purposes of this Bill.

On the noble Baroness’s amendment, I respectfully suggest that the mechanism that she has put forward—that you somehow retain the ECA for some purpose after it has been repealed—simply would not work. I appreciate that this is Committee, and we are actually looking at the underlying purpose of the proposed amendment and therefore have to consider whether we find that attractive and then look for a way to make it work. Nevertheless, it is appropriate to notice that the actual mechanism proposed in the amendment would not work.

I hope that I have addressed most of the points raised by noble Lords, but I agree with the observations made by the noble and learned Lord, Lord Brown, my noble and learned friend Lord Mackay and the noble Lord, Lord Pannick, with regard to what this Bill is attempting to achieve. It is attempting to achieve certainty as to the scope of our domestic law at exit date. That is its purpose, and we must keep that in mind.

[Baroness Ludford]

Will the Minister take another look at Clause 4(2)(b), which is a double negative? It talks about rights that are,

“not of a kind recognised”,

by the European Court or any UK court. When he was talking earlier about a directive that had direct effect, I think I recall him saying that it would have had to be recognised by a court decision as having direct effect—but the wording of Clause 4(2)(b) suggests a direct effect if it is “of a kind” that has been recognised by the European Court or a UK court. He might not be able to reply immediately but perhaps, when we come to Clause 4, he could look back at what he said today on directives with direct effect and be sure that there is a logical fitting together with Clause 4(2)(b).

[Lord Keen of Elie]

In my submission, it fits entirely with what is said in Clause 4(2)(b) and is consistent with that. It points to the necessity of there having been a recognition by the European Court or a court or tribunal in the United Kingdom for those purposes. It may be that the noble Baroness will want to take issue in due course with the use of the word “kind”, and no doubt we will come to that when we consider amendments to Clause 4.

17:45

[Lord Pannick]

This is the precise subject of Amendment 26, which arises out of a recommendation from the Constitution Committee. If the noble and learned Lord, Lord Falconer of Thoroton, is interested in this subject, we are going to debate it under Amendment 26.

[Lord Keen of Elie]

I am obliged to the noble Lord, but we have ranged rather widely in the context of the present debate—or, to use my noble friend Lord Deben’s term, we have got a little bit fuzzy as regards the precise terms of the amendment. I hope that, in light of the explanations that I have sought to give, including the reference to regulations and the point raised by the noble Baroness, Lady Hayter, to which we will return in due course, the noble Baroness will see fit to withdraw her amendment.

[Baroness McIntosh of Pickering]

I am grateful to all those who have spoken in this debate. I had not realised that we were going to have such a full debate, but it shows the importance of the issue that has been raised in Amendment 18. With regard to fuzzy wording, I am sure that my noble and learned friend Lord Keen, like myself, remembers a key distinction. I was one of the first law students to do the compulsory six-month constitutional law course on EU law, in which we learned straight off that a regulation is directly applicable and does not require any other implementation, whereas a directive is given direct effect only through implementation.

I am grateful to the noble Lords, Lord Wigley and Lord Liddle, who managed to put more flesh on the bones and give much greater clarification to what I was hoping to say. I am a little concerned by the Minister recognising that there is no legal basis for what we are seeking to do here—and my noble and learned friend Lord Mackay of Clashfern as well. I suggest, mindful of the comments made by the noble Lord, Lord Pannick, that this amendment has established that a legal basis is required, and if this is not the wording that would give that legal basis, I would request that the Government come forward by Report with the legal basis in the form of an amendment on which the House could agree. On that basis, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19 had been withdrawn from the Marshalled List.

Clause 3: Incorporation of direct EU legislation

Amendment 20 not moved.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I cannot call Amendment 20A, as it is an amendment to Amendment 20.

Clause 3 agreed.

Amendment 21

Moved by

[Baroness Hayter of Kentish Town]

21: After Clause 3, insert the following new Clause—
“Future treatment of retained EU law
(1) Following the day on which this Act is passed, no modification may be made to retained EU law except by primary legislation, or by subordinate legislation made under this Act insofar as this subordinate legislation meets the requirements in subsections (2) to (6).(2) The Secretary of State must by regulations establish a schedule listing technical provisions of retained EU law that may be amended by subordinate legislation.(3) Subordinate legislation to which subsection (2) applies must be subject to an enhanced scrutiny procedure, to be established by regulations made by the Secretary of State. (4) Regulations under subsections (2) and (3) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.(5) The enhanced scrutiny procedure provided for by subsection (3) must include a period of consultation with the public and relevant stakeholders.(6) Regulations under this section may be used only to modify provisions of retained EU law listed in any schedule made under subsection (2) to the extent that such modification will not limit the scope of or weaken—(a) employment entitlements, rights and protection,(b) equality entitlements, rights and protection,(c) health and safety entitlements, rights and protection,(d) consumer standards, or(e) environmental standards and protection.”

[Baroness Hayter of Kentish Town]

My Lords, this amendment has support from across the House: it is supported by the noble Lords, Lord Warner and Lord Kirkhope of Harrogate, and the noble Baroness, Lady Smith of Newnham, who will be speaking after me. The objective of the amendment is pretty clear. It is to ensure that no reduction in rights which are being brought over can then take place without primary legislation. It is possible that there is a better way of achieving this; I am personally attracted by the proposals of the Constitution Committee, some bits of which we discussed earlier and some bits we will come to at another time.

It is worth rehearsing why we see the need for such protection for these standards. We are talking about protections and rights that cover—in these amendments —employment, equality, health and safety, consumer rights and the environment.

When we are in the EU, although regulations, for example, are not primary legislation, they are effectively ring-fenced or secured via our membership, which means that a Government cannot suddenly sweep in and sweep them away. However, once brought into domestic law under the Bill as it stands, they could be amended and, indeed, weakened by secondary legislation without consultation, when stakeholders can have their say, and without the Government having to take a Bill through Parliament where the scrutiny that takes place, which we are seeing now, allows MPs and Peers to interrogate the rationale, costs and benefits of any change.

Now we might assume that as we have worked with and lived with these rules for some time, no one would want to take away these established rights and protections, but there is the possibility that a deregulation-obsessed Government might want that to happen. We have already quoted Liam Fox thinking protections make it too difficult to fire staff, and that:

“Political objections must be overridden”,


to deregulate the labour market. We have heard Michael Gove say,

“we now have the potential to amend or even if necessary rescind”—

—yes, he said “to if necessary rescind”, splitting an infinitive—employment protections. The noble Lord, Lord Callanan, who is not in his place, in the name of “speeding up growth”, thought to,

“scrap the working time directive, the agency workers’ directive, the pregnant workers’ directive”.

Indeed, the Initiative for Free Trade, founded by that Minister’s friend, Daniel Hannan MEP, favours tearing up the EU’s precautionary principle under which traders have to prove something is safe before it is sold—a key consumer protection.

Meanwhile, the Foreign Secretary, from whom the noble Lord, Lord Callanan, sensibly distanced himself yesterday, described workers’ rights from the EU as “back-breaking”, a particularly inept description since most of these protections are for the health of workers, including of their backs.

Another point that Boris Johnson noted, quite rightly, is that we are a nation of inventors, designers, scientists, architects, lawyers and insurers, but it is exactly those architects, scientists, designers and insurers, as well as the CBI and the British Chambers of Commerce, who have been filling up my email, urging us to remain in a customs union with its relevant regulation. The very businesses which already operate such rules seem very content to keep them, but the rules are at risk as they could be amended by secondary legislation. Similarly, the TUPE regulations, which protect the jobs, pay and conditions of workers who have been affected by outsourcing, could be at risk. The TUC has highlighted that TUPE rights tend to protect workers such as cleaners, one in six of whom is BME. Without those protections they could be dismissed or be placed on zero-hours contracts rather than in permanent, secure jobs. The TUC heard rumours that Ministers want to scrap the working time directive and fears it could be just the start and that other protections could similarly go.

As we might expect, it is not just the TUC and unions representing workers which have these concerns. There is widespread public support for EU-derived consumer, employment and environmental regulations and minimal appetite for deregulation. Three-quarters of the public support retaining or strengthening the working time directive and nearly three-quarters want to keep vehicle emissions rules. Indeed, an Opinium survey for the IPPR found,

“little to no appetite among the public for reducing or removing EU standards”.

Interestingly, that feeling was shared by leave voters and remainers, with only 5% of either remainers or leavers supporting any loosening of consumer cancellation rights, for example. Furthermore, the survey found strong support for higher standards in certain areas, particularly environmental and financial regulation. So the unions are not clamouring for deregulation and nor are the public or the public sector. I am sure other noble Lords’ emails show that the rights that we are bringing over in this Bill should not be weakened.

The British Medical Association, along with 12 royal colleges and unions, wrote to the Prime Minister in December calling on her to stand firm against any Brexiteers who want to scrap European laws, warning of risks to patient safety and arguing that even with current EU regulations,

“fatigue caused by excessive overwork remains an occupational hazard for many staff across the NHS”.

The Royal College of Nursing warns that,

“removing or weakening working time regulations would put patients at serious risk.”

Such protections are clearly supported by those who know them and work with them, but they are not just good in themselves: they matter for trade. Indeed, non-tariff barriers are a bigger hurdle to trade than are, for example, customs duties. So even if the Government are not worried about patient safety or workers’ rights—and I am sure they are—they should listen to industry, on whose success our economy depends. The CBI has stressed:

“Frictionless trade with the EU is businesses’ number 1 priority”,


and:

“A hard-headed look at the economic evidence ... shows that some form of a customs union is necessary to ensure frictionless-trade and no hardening of the Irish border”.


The British Chambers of Commerce stresses the importance of businesses getting,

“their goods across borders as quickly as possible”,

and getting things across borders means not checking for different regulations. The regulations we are bringing over under this Bill will be the ones that operate in the rest of the EU, and so long as we continue with them, our trade with the EU will be easy to maintain.

The chief executive of ADS, which represents companies in aerospace, defence and security, stresses the same issue and says that the freedom to move with the same regulations is the solution that those businesses want after Brexit. Noble Lords will know that the farming industry and the NFU strongly stress that the only way for frictionless trade in the food sector is with the same regulations—the regulations that we are bringing over by the Bill.

We are content that bringing over those regulations is the aim of the Bill. They are about safety, workers’ rights and the environment but they are also about our future trade and competitiveness. This amendment seeks to ensure that having brought the regulations over it will not be possible for a Government to start playing with them by statutory instruments to weaken them after we have passed this Bill to bring them over. The Prime Minister said, I think in her response to the BMA and other bodies, that,

“it will be for Parliament and, where appropriate, the devolved legislatures to decide on future law”.

That is the commitment we are trying to put into the Bill: that it would be an Act of Parliament, not secondary legislation, that would amend what we are now putting into UK statute. We are seeking to protect standards, not privileges. I hope that the Minister will accept this amendment, at least in principle, if not the wording. I beg to move.

18:00

Amendment 22 (to Amendment 21)

Moved by

[Lord Cashman]

22: After the new clause, at end insert—
“( ) human rights protection.”

[Lord Cashman (Lab)]

This amendment is in my name and that of my noble friend Lady Kennedy. I agree wholeheartedly with what has just been said by my noble friend Lady Hayter. It seems to me we need the protections on the listed exclusions not least because the Government are intent, following Monday evening, on not retaining the Charter of Fundamental Rights or the right of action on the general principles of EU law. My noble friend Lady Kennedy and I merely want to make the important and explicit amendment that “human rights protection” is included. I feel there is no need for me to say any more than that.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I support the noble Baroness, Lady Hayter, on Amendment 21. I do not intend in my remarks to spend a lot of time with the actual list at the bottom of the amendment, because she put across very well the need to protect in particular certain things which do credit to this country and which will give us advantages in the future, whatever the status of this country is.

I certainly felt my optimism rising today as I heard the reactions of my noble and learned friend the Minister to the whole question of how EU retained law will be protected in future. He seemed to be suggesting at one point that there might be some sort of hybrid approach. I am not sure what that might result in, but in the meantime we are in a situation where, as I am sure noble Lords are aware, the law, however it is made, comes in various forms. It comes in various packages, some of which are packages of principle of law, while other parts of the packages are the levers or the actual technical means by which laws are implemented.

That is why the amendment specifically states that primary legislation should of course be the main means by which any modification could take place, but also that subordinate legislation would be appropriate in certain cases to deal with technical areas that are not appropriate for a primary approach. Indeed, it is very sensible that even subordinate legislation be dealt with in a manner that allows it to have the support and security afforded to the principal legislation itself. I think there are certain doubts—to say the least—about the list of retained EU law. We have had several debates today and previously about what is actually meant by retained EU law, and we need greater clarity as to precisely what components make up this category.

There was a debate in another place on a very similar area and amendment. It was a very strong debate, to which a considerable number of people contributed, and real concerns were expressed about the way in which retained EU law, however it is finally listed, could be supported. As I said, I will not spend any time on the main areas that have been listed, but the Government have given many assurances—which I welcome—that the main areas of retained law will be specially protected and that they regard them as terribly important. That is only being affected, in a negative sense, by remarks from legislators who in the main do not form part of our Government but who nevertheless have been making statements indicating that, almost with immediate effect from its arrival, the retained EU law will be either tampered with or destroyed. That has meant that a considerable number of people currently affected by the law are seriously worried about what might happen to those areas that are so important to our public and social life. The reasons for this amendment are to make sure that the Government are aware of the concerns and to ask them to do their best to put in place the security necessary to protect these areas on an ongoing basis. I support the amendment.

[Lord Pannick]

My Lords, I too support Amendments 21 and 22, which would restrict the powers of Ministers to modify retained EU law by secondary legislation in the contexts that have been mentioned: employment rights, equality rights, health and safety, consumer standards, environmental standards and human rights. All of those are vital areas. It is important in considering these amendments to recognise the breadth of the secondary legislation powers that are being conferred on Ministers under the Bill—and not just by Clause 7, to which we will come next week or the week after. The point is made by the organisation ClientEarth in a helpful opinion, which I commend to the Committee, written by Pushpinder Saini QC. He draws attention—and I draw the attention of the Committee—to some provisions that are tucked away in Schedule 8 to the Bill, on page 55. Paragraph 3(1) refers to existing powers in legislation to make subordinate legislation. It says:

“Any power to make, confirm or approve subordinate legislation which was conferred before exit day is to be read, on or after exit day and so far as the context permits or requires, as being capable of being exercised to modify … any retained direct EU legislation”.


That is a remarkably broad power. On page 56, at paragraph 5(1) of Schedule 8, there is a similar power for any future power to make subordinate legislation. Of course, the word “modify” has a very broad meaning, because it is defined in Clause 14(1), on page 10, to include amending, repealing or revoking.

That gives context to the importance of these two amendments. Can the Minister confirm that this really is the Government’s intention? Schedule 8 does not have the two-year limitation period that Clause 7 has. Clause 7 applies only for two years, which is bad enough, but at least it is time-limited, whereas Schedule 8 is not. Is it really the Government’s intention to confer power on Ministers to repeal by secondary legislation—with all the difficulties that poses for adequate scrutiny by Parliament—any employment rights and any of the other important protections mentioned in Amendment 21 and 22 in so far as they are part of retained EU law, which as we have heard covers the Equality Act and many other Acts in so far as they derive from, or are linked to, EU law obligations?

[Lord Davies of Stamford]

My Lords, the support of the noble Lord, Lord Kirkhope, for the amendment will be welcome. It reflects what I have always thought was a considerable cross-party consensus in this country in favour of a reasonable amount of regulation. Of course there are fanatics. Professor Minford is a very good example of an intelligent man who believes if we got rid of all regulation it would be a very good thing, and he has made calculations of the economic benefits to the country if literally all regulations—health and safety, environment, consumer protection and employment protection and so on—were simply abolished. However, he is rightly regarded as a fanatic in his own profession and indeed in politics. There are a number of people on the right wing of the Conservative Party who have always been very close to that way of thinking, and it would be quite terrifying if the Government, under the camouflage of taking powers apparently needed to bring about Brexit, found themselves in possession of instruments that meant that without any real let or hindrance they could simply take an axe to the protective regulation that has emerged in this country over the decades.

All civilised countries have to have a reasonable amount of regulation in these fields or they very rapidly cease to be civilised. One of my great worries about leaving the EU is that we will probably end up with more regulation that in many cases will be much less rational: it will be the result of a campaign by the Daily Mail and weak Ministers giving in, saying, “Oh goodness, let them have what they want”, and regulating on this or that. There is a much greater chance of that happening when we are no longer part of a body of 28 countries that are forced to look at these issues in realistic terms and come to some agreement on the subject. That is very worrying.

[Lord Liddle]

Would my noble friend give way? I want to be helpful to his argument. He refers to Professor Minford and the cost of EU regulation. It is only by making the extreme assumption that all these regulations will be abolished that the tiny number of economic studies that demonstrate some growth benefit from Brexit are able to get to that number. Those studies are quoted very frequently from the Front Bench opposite as examples of the fact that some economists differ from the consensus, but in fact that difference depends on the assumption that we would scrap every single piece of EU social protection.

[Lord Inglewood (Con)]

My Lords—

[Lord Davies of Stamford]

I think that was an intervention. I gave way believing that it was.

[Lord Liddle]

It was to help my noble friend, yes.

[Lord Davies of Stamford]

I do not know whether or not to be pleased by that remark. It was very kind of my noble friend to want to help me but I do not know if I was in that much need of help at that moment. However, he has made a major contribution to the debate. He has pointed out something that all of us who were involved in the referendum campaign are well aware of: there were constant references by leave campaigners and the leaders of the leave campaign to the costs of the EU, but when you looked at the figures you found that they were based on the assumption that we would get rid of a whole raft of regulation—perhaps all regulation, as Professor Minford would like. However, very few people, if you put it to them, would want to live in a society in which there was no regulation in these areas. So there has been a great deal of dishonesty and obfuscation, not only in this area but in the whole European debate. In my view, that has not been a positive contribution to the ability of the British people to make an intelligent and well-informed decision. It is regrettable that some people have been prepared to be that cynical in this context.

To revert to the amendment and the clause before us, there is an extraordinary aspect to this: if the Government really do not have sinister intentions in this area—I cannot believe that they do; I do not actually think they intend to get rid of a whole raft of regulations, even in areas like employment protection, which we know the Conservatives particularly tend to dislike—why have they themselves not produced, in drafting the Bill or subsequent amendments, protections that would assure everyone that they had no such intentions? The amendment is a good one but it should not be necessary. It is most unfortunate that the Government have allowed the suspicion to be created that these regulations, which are fundamental to a civilised society, should be at risk. I look forward to hearing from the Minister that I am quite mistaken and the Government have no intention of using these powers in a deregulatory fashion but want only to use them functionally to assist in the transition to the post-Brexit era, and that they are prepared to accept the need to reassure the public that these powers cannot be misused and therefore will introduce some protections of their own, if they do not agree with this amendment, on Report.

18:15

[Lord True (Con)]

My Lords, has the noble Lord considered that, rather than resorting to his mythical thing of worry and terror about the Conservative Party, his arguments might gain more traction with some of us on these Benches if he considered the threat to property rights put forward by the leader of his party and the threat of the expropriation of value put forward by the shadow Chancellor in relation to the nationalisation proposals? The noble Lord talks about retaining regulation and parliamentary protections perhaps being helpful. Is he worried or terrified by a Labour Government having these powers to act without the kind of protections that he talks about?

[Baroness Smith of Newnham]

My Lords, we have already heard that this amendment is necessary, for some of the reasons that the noble Lord, Lord Davies, mentioned. I shall speak in favour of Amendments 21, which has my name on it, and 22. Like the noble Lord, Lord Kirkhope, I propose not to talk much about the details of areas that should not be amended, other than by a parliamentary role, but to focus a little more on the role of Parliament and the importance of ensuring that retained legislation should not be amended other than with clear parliamentary engagement, either through primary legislation or, as subsection (4) of the new clause in Amendment 21 suggests:

“Regulations … may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament”.


One thing about the vote to leave the EU, as the noble Lord, Lord Blencathra, pointed out in Committee on Monday, is that the people of this country voted to bring back control of our laws because they believed that Parliament was capable of making better laws than the EU. Not all of us in your Lordships’ House necessarily agree that we wanted to bring back control. But, to the extent that the United Kingdom voted to leave the European Union, surely the importance of the Bill is in ensuring not just that legislation is on the statute book but that there is no Executive power grab and that Henry VIII clauses and other opportunities—as in Schedule 8, outlined by the noble Lord, Lord Pannick —should not enable Ministers to make decisions that subvert the legislation without full parliamentary engagement.

It is hugely important that the rights and duties that have been outlined in existing legislation cannot be changed by ministerial fiat. If this amendment is not accepted, it is therefore important that the Government bring forward some other suitable amendment on Report that enables us to be reassured that the aim of the withdrawal Bill is not to give more powers to Ministers but, rather, to take back control to Parliament.

[The Earl of Listowel (CB)]

My Lords, in considering how to deal with this legislation in future, will the Government keep very much in mind the impact on families? The Minister may be aware that in Germany there is no Sunday opening and that after 8 pm businesses are not allowed to send emails to people who work in their offices, yet it is the most productive of nations. I would say that part of that is attributable to the care that it takes about family life and finding a balance between that and work. The risk is that, in driving towards greater immediate remuneration and productivity, we fail to take the long-term view and think through carefully what changing these regulations would do and the impact that would have on family life.

In Germany, 15% of children grow up without a father in the home; in Britain, it is about 20%; in America, it is 25%. If we keep on putting pressure on families to be more and more active in the job market, the risk is that this will contribute to family breakdown and we will be shooting ourselves in the foot in the long term. I agree with Amendment 21: we should think very carefully and go through as strict a process as possible before removing these protections. Of course, it is a complex argument, because employment can reinforce family life and protect from family breakdown, but it needs to be carefully thought through. The Germans, with their better life balance, seem to be more productive than us, so we may need to keep that lesson in mind in legislating in such areas in future.

[Viscount Trenchard (Con)]

I agree with what the noble Earl said about the balance between work life and family life, particularly with regard to the recently adopted hours which are becoming commonplace in your Lordships’ House, but I regret to say that I cannot support the amendments, because they do not achieve their intention.

As the noble Baroness, Lady Hayter, recognised, the intention of her amendment is to ensure continuity and certainty in the law both before and after exit day. She worries that the powers granted to Ministers to amend retained EU laws should be both restricted and subject in each case to an enhanced scrutiny procedure, which would also provide for a period of consultation with the public and relevant stakeholders. But the effect of the amendments is to increase uncertainty and, ironically, reduce the likelihood—the certainty that is needed—that retained law will continue to provide exactly the same protections as before. Indeed, the period of public consultation to be provided in the enhanced scrutiny procedure gives the impression that policy changes may also be entertained. As we have heard from Ministers, the Bill is not about policy change.

Without these powers, there are huge risks that retained EU law will be defective for technical reasons—for example, due to the enormous number of references to Union institutions, which all need to be changed. Such changes would take so very much longer if each change was made subject to the enhanced scrutiny procedure proposed by the noble Baroness. That is just one area in which the amendments are counter productive.

[Lord Judd (Lab)]

My Lords, I shall speak to Amendment 23A but, before I do so, I should like to say how much I admired the clarity with which my noble friend introduced the lead amendment in the group and how warmly I support the amendment in the name of my noble friend Lady Kennedy on the issue of human rights.

I have two points to make. The first is that the anxiety out there in British society should not be underestimated. There is a great deal of anxiety among extremely good quality people who are doing dedicated work in the spheres with which we are concerned. Secondly, as a layman in no way involved in practising law, I have always understood as a citizen that what is terribly important about the law is its clarity and transparency. As we consider the amendments we must therefore not inadvertently allow doubt and misgiving as to whether there has been full transparency, and full commitment to that transparency, to creep into our future.

It is therefore very important, and I make no apology for proposing it, to get written into the Bill the fact that we seek to protect existing rights of citizens in the spheres affected. I shall read to the Committee the points that Amendment 23A says should be, and seen to be, central to the deliberations and negotiations that lie ahead. They include: human rights and equality, in which we have made great progress; privacy and data protection, which we have debated at great length in this House; and immigration and asylum protections—I am certainly one who believes there is much more to be done in that realm, but the Bill is not about that. My amendment is therefore not about that either but about protecting what we have. The other points are,

“criminal justice protections … employment protections … environment and public health protections … consumer protection … access to housing, education and health and social care”.

I want to feel confident, in the immense amount of work lies ahead, that those issues will be in the Bill as primary considerations. I hope that the Minister, for whom my admiration increases all the time with the clarity with which he responds to amendments, will be able to reassure me that there will be some way to ensure that these things are not just implied in what is proposed but are there specifically.

[Baroness Drake (Lab)]

My Lords, I shall speak to Amendment 21. The Bill gives Ministers what the Constitution Committee described as,

“an unprecedented and extraordinary portmanteau of powers upon which the Government could draw”.

We are now seeing growing concern that by our giving such powers, well beyond those needed to effect legal continuity, Ministers could use them to effect substantive policy changes. That is what is at the heart of this tension.

Many important protections currently enjoyed by UK citizens are not written into Acts of Parliament but underpinned by membership of the EU, which cannot be weakened by the UK Government. Once some of those protections are brought into domestic law by secondary legislation, there is no assurance that they can be changed only by primary legislation. The Bill will also allow Ministers to use the delegated powers contained in existing UK legislation to effect significant policy changes to retained EU law. The powers under Schedule 8 have already been referred to.

The merit of Amendment 21 is that it poses greater protection by enhancing scrutiny of ministerial amendments to retained EU law and restricting the modification of retained EU law by subordinate legislation to technical provisions. Such modifications could not limit the scope of or weaken standards and protections afforded to UK citizens. Amendment 21 makes a clear distinction, which the Bill fails to do, between technical and substantive policy changes—between necessary amendments to retained EU law to provide legal continuity and the wider issue of discretionary amendments that implement substantive changes to policy.

I want to refer to employment rights and consumer standards to illustrate the amendment’s merits. There are many EU-derived equality and employment protections enjoyed by the people of this country that are essential ingredients of economic fairness and social cohesion. These are rights which working people now take for granted, including rights to paid holidays, equal pay for equal-value work and equal treatment in the workplace.

18:30

The safety net for employment and equality rights will be weakened when the UK leaves the EU and the future framework of EU law, including the court system that supports these rights. Individuals will no longer be able to bring a free-standing legal challenge that UK law breaches the principles of EU law or seek Francovich damages where the Government fail to respect rights derived from EU law. Ministers will be free to pursue significant changes to employment and equality protections without the need for primary legislation.

Amendment 21 would ensure that Ministers cannot use the correcting powers in this Bill to weaken protections enjoyed by UK citizens. The Government will need primary legislation to do that. People are entitled to greater legal certainty that ministerial powers intended to convert EU law into domestic law will not be used to undermine their protections. Ministerial promises will not suffice. David Davis, in his recent Vienna speech, said the UK wanted to lead a,

“global race to the top”,

in rights and standards, and not a,

“competitive race to the bottom”.

However, ministerial statements have currency only until the next ministerial occupant. Recent government changes to employment rights heighten concerns. They capped compensation awards in unfair dismissal cases, which they could do as core rights on unfair dismissal are based on UK law. There are concerns that, post Brexit, compensation rights derived from EU law will be capped. The consultation period in the event of mass redundancies was halved. Fees introduced for employment tribunal claims led to a dramatic fall—of approximately 70% in cases going to tribunal, with women and low-paid workers particularly disadvantaged. The Supreme Court struck down those fees, but the Government hinted that a new fees scheme could be introduced.

The Government have spoken of a “new economic model” when the UK leaves the single market. They know of the growing fears that the Government will cut employment protections. David Davis, Brexit Secretary, specifically called them out in his recent Vienna speech when he asserted that Britain will not be plunged into,

“a Mad Max-style world borrowed from dystopian fiction”,

after it leaves the EU. He went on:

“So while I profoundly disagree with those who spread these fears—it does remind us all that we should provide reassurance”.

Promising to behave better than characters in “Mad Max” still leaves a lot of scope to behave badly, and provides little reassurance. This amendment would allow the Government to make a significant contribution to providing that reassurance by constraining the Executive uses of power in this Bill, and weakening protections currently enjoyed by the people of this country.

My underpinning reasoning applies equally to standards of consumer protection. Consumer protection standards are integral to the economy, as every month consumers spend £100 billion in the UK and, in doing so, support UK businesses, manufacturers and employees. Which?, the consumer organisation, captured it well when it observed that on the current drafting, the Bill is,

“effectively offering a carte blanche to Ministers … a Minister could realistically make sweeping changes to laws that impact on consumers in areas such as food and product safety standards, approval systems, and the oversight of financial services … changes of this scale and nature, which could impact on the Government’s general policy approach, the nature of current consumer protections and even governance, oversight and enforcement arrangements, must be subject to wider scrutiny in order to ensure the best outcome for consumers”.

I take another example from the Financial Conduct Authority—we should look at some of the commentary coming from the financial sector—and the FCA handbook, through which some EU-derived legislation is implemented. The powers in the Bill allow Ministers not only to make significant changes to that handbook, which could impact on consumer standards, but to alter the balance of responsibilities in the financial services sector and upset institutional coherence within the regulatory bodies. Is it any wonder that we are seeing such an amendment as Amendment 21?

In supporting this amendment I do not want to get into a debate about the preferred economic model for the UK post Brexit. My concern is to constrain ministerial powers intended to convert EU law into domestic law from being used to implement substantive changes of policy. I say to the noble Lord, Lord True: I do not want these powers given to any Executive. I happily concede that point.

[Baroness Ludford]

Before the noble Baroness sits down, I invite her to agree with me that the fears that she raises are not fanciful. Indeed, the reason the Brexit Secretary had to make his speech was that we have on record numerous statements by Conservative politicians who are now Ministers expressing a desire to deregulate. I quoted one from the noble Lord, Lord Callanan, the other day. In 2012, Liam Fox said:

“To restore Britain’s competitiveness we must begin by deregulating the labour market. Political objections must be overridden. It is too difficult to hire and fire and too expensive to take on new employees. It is intellectually unsustainable to believe that workplace rights should remain untouchable”.


That is on the record, and I have lots of other quotes in a similar vein.

[Lord Falconer of Thoroton]

My Lords, three pretty clear themes are emerging around the House. First, you should be able to use the subordinate legislation to change EU retained law only where it is necessary to make EU retained law work. Secondly, it should affect only technical matters; and thirdly, it should not take away any individual’s rights. So there are three requirements: it must be necessary to make it work, affect only technical matters and not take away anybody’s rights. The argument for being allowed to go further has not been made anywhere, and I would be very interested to hear the Minister say why those three principles should not apply to every piece of subordinate legislation under the Act. If the Government want to go further, primary legislation should be used. Unless there is a case for going further, this Act should be appropriately limited.

[Lord Faulks (Con)]

The Bingham Centre makes the very cogent point that there is no clear analysis so far as to what the body of EU law is in an easily accessible form, so that businesses and individuals can ascertain what applies to them. However, the Solicitor-General said in the other place that there are 12,000 EU regulations currently in force in the UK and around 7,900 statutory instruments implementing EU legislation.

I understand the fears expressed around the House, particularly on the opposite Benches about the feeling that the Government have all sorts of sinister plans to take away rights. They will do so if they feel it necessary, by primary legislation, it is said, but no other way. This amendment would make it very difficult to do anything other than by primary legislation. First, a list of so-called technical provisions has to be established—a considerable challenge. No changes can modify any of the matters which are set out in Amendment 21. Those matters seem to cover more or less everything. What is to say that labelling and packaging is not a matter for consumer standards? Matters of health and safety entitlements, equality entitlements and rights of protection—almost anything can come within those definitions. Similarly, there are environmental standards and protection. I am not talking about fundamental matters such as the working time directive, but a great deal of the various regulations and statutory instruments that come from Europe are relatively trivial. Even those who endorse very much what has come from Europe would accept that not all of it is critical or crucial to our society going forward. That will make it almost impossible to change anything, which may be the desire of members of the party opposite who do not want to leave the European Union—or those all around the House.

That is the effect of this amendment. So far as Amendment 22 is concerned, on “human rights protection”, the noble Lord, Lord Cashman, was very succinct; he did not specify what “human rights protection” meant. We had a debate on the Charter of Fundamental Rights—

[Lord Cashman]

I precisely did not elaborate on the reasons why, as I felt that I did that at some length on Monday evening. But it is precisely because the Government have said that they have no intention of carrying over the Charter of Fundamental Rights, or the right of action based on the general principles. It is precisely for those reasons that we need to protect the aspect of human rights, because it is not contained specifically within the previous amendment.

[Lord Faulks]

The Human Rights Act is expressly preserved as a result of the changes that the Bill is going to bring about. The charter is, of course, ruled out by the Bill at the moment; I suppose, from what the noble Lord says, this is a way in which to bring it back in under the rubric of “human rights protection”—but, of course, “human rights protection” is potentially a varied and wide description.

This amendment is an absolute recipe for confusion and litigation. Although I understand the feelings of insecurity about what a Government might have in mind, it is not consistent with the overall objective of this legislation, which is to provide clarity at the moment when we leave the European Union.

[Lord Pannick]

Given the noble Lord’s objections to the drafting of this amendment, does he sympathise, as I do, with the noble and learned Lord, Lord Falconer of Thoroton, with the idea that a way can be found to restrict powers of Ministers by subordinate legislation to change retained EU law? Will he express the hope that the Government will think very carefully about that and bring forward an amendment before Report?

[Lord Faulks]

I am grateful for that intervention. I am certainly receptive to the possibility of some restrictions on what the Government can do, but this is far too much of a restriction—it is a complete straitjacket.

[Lord Bilimoria (CB)]

If I may, I shall just reference the former Attorney-General, Dominic Grieve, who wrote recently:

“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.


We have not yet touched on this, but we had the Strathclyde review from the noble Lord, Lord Strathclyde. On 26 October 2015, noble Lords withheld agreements to tax credit regulations and the following day a Motion was moved and narrowly defeated and, therefore, the Prime Minister said that we should review this. The House was criticised for flexing its political muscle and the review said that we should,

“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.

We built up lots of experience with secondary legislation and, of course, the House of Commons is meant to be primary and its will should not be blocked. As the noble Lord, Lord Strathclyde said:

“It would be regrettable if the Lords simply became a highly politicised ‘House of Opposition’”.


We are not a House of opposition; when that happened, it was a rare occurrence for all of us present, because since 1968 there has been a convention that we should not reject statutory instruments. It has very rarely happened. The rejection of the tax credits regulation broke new ground.

So it is much more complicated. There are so many different types of statutory instruments, including super-affirmative, subject to affirmative resolution procedure, subject to negative resolution procedure, laid instruments and unlaid instruments. The noble Lord, Lord Faulks, said that there were already 8,000 statutory instruments in place regarding the European Union. If you look at the number of instruments over the years, it runs into thousands. How many thousand statutory instruments does the Minister predict we will need to implement this Bill?

18:45

The right honourable David Lidington responded to the Strathclyde report, saying:

“Whilst recognising the valuable role of the House of Lords in scrutinising SIs, the Government remains concerned that there is no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs … We must, therefore, keep the situation under review and remain prepared to act if the primacy of the Commons is further threatened”.

Here we have a threat to this House—that if we dare to challenge the statutory instruments, we are going to get into trouble. I remember that the noble Lord, Lord Strathclyde, when this came up, said the same thing in the debate.

Now the noble Lord, Lord Pannick, has brought to our notice the wide powers tucked away in Schedule 8 and the repealing by secondary legislation of these—

[Lord Forsyth of Drumlean (Con)]

I am grateful to the noble Lord for giving way, but does not he see how absurd the argument is that he is putting when these European regulations are matters over which the House of Commons has no choice but to implement? The whole point of this Bill is that it is restoring it to the primacy of Parliament to decide on these regulations.

[Lord Bilimoria]

The noble Lord, Lord Forsyth has great foresight, because I am about to cover that in my speech.

[Baroness Manzoor (Con)]

In terms of limiting the powers of Ministers, is that not within Clause 7? Forgive me if I have misread that, but I refer both to the point that the noble Lord is making and to the point that the noble Lord, Lord Pannick, made earlier.

[Lord Bilimoria]

With all due respect, that is the whole objective of this—the fact that one can use statutory instruments. Here is the underlying worry—about a Government who have tried to bypass Parliament from the beginning, from the wretched referendum. They tried to implement Article 50 without Parliament. That is a fact. It took an individual—Gina Miller—represented by my brilliant noble friend Lord Pannick, to defeat the Government in the High Court. The Government then appealed to the Supreme Court and were defeated resoundingly—and the noble and learned Lord, Lord Keen, was on the other side.

[Lord Hamilton of Epsom (Con)]

Did the noble Lord think that it was the intention of Miss Gina Miller that, when the House did have a vote, it would actually vote by an overwhelming majority to move Article 50?

[Lord Bilimoria]

I remind the noble Lord that this House, in that Article 50 Bill, had two of the largest votes in the history of the House of Lords; 614 of us voted in one instance and 634 in the other instance. In both instances, we defeated the Government by almost 100 votes. The fact that the House of Commons did not accept that is a different matter—and the point that I am making is that the Government tried to bypass Parliament. There is the worry that statutory instruments bypass Parliament.

Do Henry VIII clauses give Governments the power of royal despots? Well, secondary legislation is used all the time to amend the text of primary legislation in non-despotic ways, as the noble Lord, Lord Faulks, said—they do not have to be. In fact, the biggest Henry VIII section of them all can be found in the European Communities Act 1972—the very piece of legislation that we are repealing.

[Lord Forsyth of Drumlean]

My Lords—

[Lord Bilimoria]

I am coming to the noble Lord, Lord Forsyth—will he please have some patience? Specifically, Section 2(2) of that Act deals with the type of EU legislation and rulings that need to be transposed into UK law. Typically, these involve EU directives where the intended outcome of the law is made clear, but it is up to the individual member states how to implement them. After Brexit, if Brexit happens, the Government want to use a Henry VIII clause in reverse—to adapt EU laws to make them British. For example, disputes that are currently referred to EU regulators or courts will be amended to refer to their British equivalents. The logic of the noble Lord, Lord Forsyth, is that, if you are going to have a swathe of amendments to undo primary legislation that has already been made using secondary legislation, you should make those replacements in the same way. It is not as simple as that; because of the “deficiencies arising from withdrawal”, the references to the EU regulators, the European Court of Justice and other entities will no longer have any sway if there is Brexit. It is not as simple as saying, “Because they are simple things, we just can’t do this”, and the Government saying, “We will just use these Henry VIII powers to tidy up things”. The problem is that it might alter not just technical details but also the substantive effect of the law. These amendments are trying to protect really important issues.

The Supreme Court has also said that it is well established that, unlike statutes, the lawfulness of statutory instruments can be challenged in court. Even if a statutory instrument gives Ministers broad powers, the courts have established that they will apply limitations. The broader the power, the more likely the courts are to intervene to ensure that the intention of the law in question is not being altered or undermined. Does the Minister accept that?

I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.

[Lord Adonis]

My Lords, may I elaborate on the point made by the noble Lord, Lord Pannick and invite the Minister to respond further? A key point in this debate is surely that powers conferred by Parliament should be exercised only as Parliament intended. A key point on paragraph 3 of Schedule 8, which the noble Lord referred us to, is that the power to make and approve subordinate legislation—which is conferred in primary legislation—was, in the case of retained direct EU legislation, originally conferred in the context of directives and legislation which derived from the European Union itself. So the context in which Parliament gave the power to make subordinate legislation was that it should achieve the purposes of the directive.

That being the case, allowing these powers to be used completely independently of those directives significantly enlarges the scope within which those powers can be exercised, which was not intended by Parliament when the powers to grant that subordinate legislation were first conferred. I am not sure that I am carrying the noble Lord, Lord Pannick, with me, but that seems to me to be a crucial aspect of Schedule 8, and it would be good to get the Government’s comments on that.

[Lord Pannick]

The only reason why the noble Lord is not carrying me with him is that I do not understand the purpose of paragraphs 3 and 5 of Schedule 8. It seems to me extraordinarily broad, which is why I am seeking an explanation from the Minister as to why we need these powers, given that we also have Clause 7 in the Bill, which is time limited.

[Lord Keen of Elie]

My Lords—

[Lord Judge (CB)]

May I just have a few moments?

[Noble Lords]

Hear, hear.

[Lord Judge]

Well, noble Lords may not want to hear what I am going to say. I have had a sense developing over the last 40 minutes that we are well ahead of ourselves. We should be discussing these issues when we come to decide the very important question of whether retained EU law is to be treated as primary legislation, subordinate legislation or a bit of both. We will then have a debate on Clause 7, which entirely addresses this issue of subordinate legislation and Henry VIII powers, and we will come again to it when we debate Clause 9.

I just make two points. First, no Parliament can bind its successor. We do not know what a future Parliament will think about all these various matters raised in proposed new subsection (6) in Amendment 21; they are very important issues, but we cannot bind anybody. Secondly, in relation to the exercise of any Henry VIII powers—and there will of course have to be careful thought given to it—I am fascinated by the proposal in proposed new subsection (2) in Amendment 21 that a schedule should list,

“technical provisions in retained EU law that may be amended by subordinate legislation”.

When we come to look at Henry VIII powers, do we not have to take a rather more revolutionary look at them? Should we not be saying to ourselves that the Government of the day—whatever Government it may happen to be—should, at the very least, in the proposal for subordinate legislation, set out which terms of primary legislation are being repealed, amended or affected by the secondary legislation? That is some food for thought.

[Lord Keen of Elie]

My Lords, as may have been observed during the passage of the Investigatory Powers Bill, the Government are always listening. I am most obliged to the noble and learned Lord, Lord Judge, for his observations, because they go to the very heart of the point I want to make. We are, in a sense, having the wrong debate in the wrong place, but I am also relieved to hear from my friend the noble Lord, Lord Pannick, that he does not understand paragraph 3 of Schedule 8, because I was rather concerned about his earlier interpretation of it under reference to the opinion of Pushpinder Saini, QC—I will come back to that in a moment, if I may.

The areas that these amendments seek to protect, such as employment rights and environmental standards, are issues that are important to every Government, and in particular this Government. Of course, we are anxious to ensure that rights and standards such as these are maintained—indeed, where possible, increased —after we leave the EU. It might be observed that UK protections in many of these areas—for example, parental leave—in fact go beyond the level of protection provided for in EU law, so let us keep this in context.

It is important, however, that we are able to address deficiencies to ensure that the protection of these rights and the standards that they reflect continue to function effectively and that the Government are able to amend legislation in line with our history of leading in these areas of protection. When people voted to bring back power to our Parliament and to bring back control of our laws, they did not vote to put them in the deep freeze for any number of years. We have to see this in context: we are talking about thousands of regulations—somewhere in the order of 12,000 regulations —which were of course not the subject of parliamentary scrutiny; and we are talking about thousands of SIs implementing directives, which were of course not the subject of parliamentary scrutiny, which have come into our law and will be part of our law on exit day, because they will form part of the area of retained EU law.

The noble Baroness, in her amendment, proposes a schedule of “technical provisions” in an area where we are dealing with enormous quantities of law, by way of regulation and by way of implemented directives. The first point that would arise is: where is the line to be drawn between what is a technical and a non-technical provision? The noble and learned Lord, Lord Falconer, alluded to this as one of the three criteria he had in mind. You have to be able to define these criteria, otherwise you immediately run into a further issue. That is in itself a very real challenge: how would we define or class a technical issue in the context of seeking to update retained EU law?

Perhaps the more important point, however, is that much of what has been said here anticipates the issues that we will debate in the context of Clause 5, on the classification of retained EU law, and, more particularly, Clause 7, in relation to the exercise of certain powers by government in dealing with the body of retained EU law. Again, it is important to try to put this in context. We have had references to the suggestion that the Government are taking untrammelled, unlimited powers to do virtually anything with the statute book. Let us not, even if we think we have a good case, overstate it because, in doing so, we rather spoil our argument. That is not at all what the Government seek to do. Clause 7 is concerned with how we deal with deficiencies arising from our withdrawal from the EU. It is therefore concerned, as it says, about the making of regulations which are,

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively”.

We are not talking about wholesale policy changes to our employment or environment laws, our standards for consumers or anything of that kind. The noble Lord, Lord Pannick, referred to—

19:00

[Lord Davies of Stamford]

I am grateful to the noble and learned Lord for giving way. Of course, we hope that we are not talking about any of those things. We hope that we are not talking about radical changes and reductions in some of the essential regulation which we have all said is so necessary. However, we need a little bit more than hope. We need some evidence of the Government’s commitment to restrain themselves when it comes to using these powers.

[Lord Keen of Elie]

That is why Clause 7 is drafted in the terms in which the noble Lord will find it in the Bill.

Reference was also made to the provisions of paragraph 3 of Schedule 8. I am not sure how the noble Lord, Lord Pannick, interpreted that paragraph but let us be clear: it refers to existing powers, not to powers created under this Bill. Those powers already exist in respect of existing legislation. They are not being extended. If the Government truly intended to bring about wholesale change to these policy areas, and could do so on the basis of their existing powers, perhaps they might have done so already. The provision does not extend to these powers. Therefore, again, with respect, it appears to me that the matter is being taken out of context. However, I would be happy to look at the opinion on this from Pushpinder Saini referred to by the noble Lord, Lord Pannick.

[Lord Adonis]

My Lords, he pointed out that Schedule 3 is not the key—

[Lord Keen of Elie]

My Lords, we must make progress at this stage, if the noble Lord does not mind. We have to keep moving.

I come to the nub of the point. If there is a concern about the powers being conferred on Ministers to ensure that the retained EU law works after exit, that arises in the context of Clauses 7 and 5, which will be the subject of future debate in this House. As I say, it is not appropriate to try to represent the powers already set out in the Bill as extending beyond the boundaries set out precisely there about correction, regulation and making retained EU law work. I respectfully suggest that the route proposed by the noble Baroness is not one that we should go down as we would simply run into the sand. If we were to list technicalities and technical changes in all these areas of legislation, we would be here in 10 years’ time trying to produce such a schedule; let us be frank about it. Of course, many people may wish that we will be here in 10 years’ time attempting to achieve that. In that context, I invite the noble Baroness to consider withdrawing her amendment and invite the noble Lord, Lord Judd, not to move his.

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken. I know the Committee will not believe this but the three noble Lords I most want to thank are the noble Lords, Lord True and Lord Faulks, and the noble Viscount, Lord Trenchard. I thank the noble Lord, Lord True, for raising my spirits. I love the words “Labour Government”; I will use them again and again. I thank the noble Viscount, Lord Trenchard, because sometimes when you know what you are talking about, you assume that everyone else does. I had got something wrong and it was not clear. I was not talking about how, under this Bill, the current EU rules will be put into legislation by statutory instruments. We are content with that. We will in due course argue about whether the relevant word should be “necessary” or “appropriate”, but that is not the purpose of this amendment. I thank the noble Viscount, Lord Trenchard, for giving me the opportunity to say that.

The purpose of the amendment is about looking way into the future and future-proofing what we are putting into UK legislation and to make sure that it cannot then be tampered with by means of statutory instruments. It is not about the current work that many of our colleagues on the statutory instruments committee are about to undertake. We are talking about the future. I again thank the noble Viscount for giving me the opportunity to discuss that.

I say to the noble and learned Lord, Lord Judge, that I said at the beginning of this discussion that we would come on to how we deal with the bigger issues involved in this matter. However, today, I want to discuss the human, environmental and consumer rights that we sometimes risk losing sight of when we get into the technicalities of law and how we are going to hold on to those. As I said, I absolutely accept that we may deal with the technicalities later.

The noble Lord, Lord Faulks, said that certain bits of retained EU law could possibly be dealt with by statutory instruments and others by primary legislation. Elsewhere in the Bill judges are allowed to deal with measures on a case-by-case basis. But in the case of retained EU law, we have a difficulty as I think he said that he was happy for the Government to decide which measures could be dealt with by secondary legislation. Perhaps that is the nub of the problem.

[Lord Faulks]

I am very grateful to the noble Baroness for giving way. I perhaps ought to clarify that I was responding to a question from the noble Lord, Lord Pannick. I meant the Government in the course of the Bill rather than the Government simply deciding that they wanted to do it.

[Baroness Hayter of Kentish Town]

I thank the noble Lord. I apologise for misunderstanding that point.

I am afraid there was an offline conversation between the noble Lord, Lord Kirkhope, and myself. I do not know whether he referred to that when he spoke but in that conversation he gave a very good description of the aims of the Bill—namely, that after we have examined it and are satisfied that all the stuff is going into UK legislation, everyone should know what the rules are and the Bill should achieve that outcome. That is what this measure is about. It is about whether we leave it to Ministers in the future to decide which bits of retained EU law they can deal with in secondary legislation. As my noble friend Lady Drake said, we need to restrain executive powers as ministerial promises will not suffice. That in a sense is where we are with this issue.

My next point relates to the issue raised by the noble Earl, Lord Listowel—namely, that we as legislators look at something but may forget sometimes to undertake consultation, be it with families or anyone else. That is one of the other great advantages of primary legislation: it is much more out there for people to talk about.

The noble Lord, Lord Pannick, as always trumps everything I do and comes up with much better arguments. However, I too had not noticed the lack of a time limit in Schedule 8. I am sure that we shall want to return to that.

As we have heard a number of times, the Minister said that there has been no parliamentary scrutiny of the current EU law, so anything we get in future will be better. I remind him that much of that law goes through the Council of Ministers, where we have a Minister, and through the European Parliament, where we have British MEPs. Therefore, the idea that there is no democratic involvement from the Brits is not quite right. We are listening to the concerns of consumers, workers and, indeed, business, about the Bill and I think there will be amendments to it to address some of their concerns. However, we are looking now to future-proof it to ensure that we do not give Ministers rights that we may not want them to have. We will come back to that in the broader discussion. However, for the moment, all noble Lords will be very pleased to know that I beg leave to withdraw Amendment 21.

Amendment 22 (to Amendment 21) not moved.

Amendment 21 withdrawn.

House resumed.