Monday 23rd April 2018
(6 years, 7 months ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 79-R-III Third marshalled list for Report (PDF, 247KB) - (23 Apr 2018)
17:31 - Division on Amendment 15 - Ayes: 316 / Noes: 245 - Amendment 15 agreed.
18:36 - Division on Amendment 18 - Ayes: 285 / Noes: 235 - Amendment 18 agreed.
18:51 - Division on Amendment 19 - Ayes: 280 / Noes: 223 - Amendment 19 agreed.
Lord Goldsmith
I will listen attentively to what the Minister says, of course, but I do not anticipate that we will hear anything new. In those circumstances, I hope that the noble Lord, Lord Pannick, will ask the House to state its opinion. I will be glad to go in the Lobby with him then, as I hope will many Members of the House.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I thank all your Lordships for an interesting debate which has addressed some of the issues in considerable depth. In a short but telling address, the noble Lord, Lord Howarth, noted that he was not a lawyer, but he exhibited a depth of understanding and a delicacy of touch in respect of our constitutional settlement that is absent from many lawyers, including, I fear, one or two who have spoken in this Chamber.
Lord Keen of Elie
Why should I say that? Let us be clear: the Charter of Fundamental Rights of the European Union applies only to a member state where it is directly implementing European Union law. As my noble and learned friend Lord Mackay of Clashfern observed, that point was reinforced in a judgment of the United Kingdom Supreme Court just a few months ago, when it said that it is not enough to address something within the scope of EU law. The charter has applicability only where a nation member state is directly implementing EU law. That has to be borne in mind.
When we leave the EU, whether you wish it or not, we will not be a member state and we will not be directly implementing European Union law. We will have a body of law brought into our domestic law under the heading “retained EU law”. It is a body of law which will diminish over time and diverge from European Union law over time as the latter develops.
What do we find in a document, the Charter of the Fundamental Rights of the European Union, that will assist us after exit, and on what constitutional basis are we to maintain it? The noble and learned Lord, Lord Goldsmith, helpfully referred to the explanatory notes to the charter. It is worth bearing those in mind, because the preamble to the charter, which I appreciate the noble Lord, Lord Pannick, would exclude from his amendment, tells us that,
“the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter”.
So the charter is a living document because it is subject to explanations, which, as the noble and learned Lord pointed out, may assist in our approach to the charter itself. But it goes further than that. We may decide, as is suggested by the amendment, to ring-fence the charter within that body of law referred to as retained EU law. But, as the noble and learned Lord, Lord Hope, observed in Committee, if that was to be attempted, the charter,
“will have to be largely rewritten if we introduce it into our law, but it is not designed for the kind of situation we are facing after Brexit. It is designed for use within the Union and to be interpreted by the CJEU”.—[Official Report, 26/2/18; col. 544.]
In that respect he was entirely correct.
However, just saying that the charter is going to be ring-fenced into domestic law is not even half the story. One has to have regard to the content of the charter itself—something that will apply only to a member state implementing EU law. If I am a little tedious on this point, I apologise in advance, but it is worth noticing some of the terms of the articles within the charter itself; one or two were referred to by my noble friend Lord Faulks. In the context of non-discrimination, it is to be looked at,
“within the scope of application of”,
the treaties. In the context of workers’ rights to information and consultation, it is to proceed not only under the conditions of “national laws and practices” but,
“under the conditions provided for by Union law”.
We will come back to that. In respect of the protection in the event of unjustified dismissal, it is to be considered not only in the context of national law but,
“in accordance with Union law”.
Article 34, with regard to social security and social assistance, is to be addressed,
“in accordance with the rules laid down by Union law”,
not just national law; that also applies in the context of social and housing assistance. With regard to economic interest, under Article 36, the objective is,
“to promote the social and territorial cohesion of the Union”.
Environmental protection is to be,
“integrated into the policies of the Union”.
Consumer protection is concerned with “Union policies”. The right to an effective remedy and a fair trial refers to everyone,
“whose rights and freedoms guaranteed by the law of the Union are violated”,
so again we have to have regard to the law of the Union. Within the field of application itself, we have already noted that the charter applies only when a member state is directly implementing Union law.
What do we mean by “Union law”? Well, it is not international law and it is not national law. The Government, exercising the royal prerogative, can enter into international treaties at the level of international law. That is precisely what they did in 1972. That has no impact on domestic law. It is only when this Parliament decides to draw down those international treaty obligations into national law that those laws become binding upon us. That is where Parliament has to decide. So what is union law? Since at least the decision of the European Court of Justice in Van Gend en Loos in the 1970s, it has been stated repeatedly by the courts of justice in Europe that EU law is not a species of international law. It represents a new legal order for the members of the Union. That is Union law. In a sense it is a form of federal law: a law that applies to all the member states of the Union.
Lord Keen of Elie
There we go.
The next stage is to say that we as a Parliament do not trust our ability to hold the Executive to account. Then we go on to the next stage to say, of course, that we do not trust the electorate to return a Parliament that is capable of protecting their fundamental rights. What happened to the mother of Parliaments? What happened to the concept of the sovereignty of this Parliament? We are apparently prepared to abandon it in favour of a body of foreign law because we no longer trust ourselves to protect our own fundamental human rights. Is that what we have really come to? It is a shocking dénouement: whether you wish to leave the European Union or you do not wish to leave the European Union, the idea that we are going to have to cling on to a body of foreign law in order to maintain fundamental human rights in this country is simply astonishing. As I indicated before, it would reflect not only a constitutional outrage but a total abdication of our responsibilities.
Looking to Amendment 15, what is it actually going to do? It is going to bring into our domestic law a charter that relies upon union law—a developing body of foreign law going forward. Are we going to monitor this, because we are not ring-fencing the terms of the charter if we bring it into retained EU law? It will be subject, going forward, to the Explanatory Notes; it will be subject, going forward, to the development of Union law; and on the back of that, where we are supposed to be directly implementing EU law—and I can only infer that the intention of the amendment, although it is not stated and cannot be found there, is that this applies to retained EU law rather than EU law itself—the intention is that we should therefore be bound to watch while primary legislation of this Parliament is struck down on the application of a foreign body of law. We need to wake up to why the charter in its present form does not sit with our future constitutional settlement after we leave the EU and why it does not fit with the body of retained EU law that is referred to in the Bill.
Lord Thomas of Gresford (LD)
If the charter is incorporated, does it not become retained EU law? Therefore, it would be subject to the mechanisms that are set out in Clause 7 of the Bill, which would enable Parliament, or Ministers—however we decide—to change it afterwards, with proper debate. What is going to happen to the rights contained in the charter which are above the rights that we have at the moment, as he has conceded and as has been conceded by other people? What is going to happen to those rights? They will fall away; they will not become part of retained EU law and therefore will not be part of the law of this country.
Lord Keen of Elie
With great respect to the noble Lord, just because the charter is made part of retained EU law in terms of the Bill does not mean that Union law, which is the linchpin and anchor of the entirety of the charter, is then retained EU law. Union law remains Union law. Therefore the charter will continue to develop. Even though it is ring-fenced within retained law, the body of the charter will be subject to Union law. You cannot have it both ways.
The noble Lord also mentioned the loss of rights. As we indicated, we have done an analysis of rights, which has been published. We have indicated that if, once this Bill is passed, it is apparent that any substantive rights are lost, we will address that. With great respect, it appears to me that the noble Lord misses the fundamental point, which is that we are effectively going to be submitting to a body of foreign law after we exit the EU if we proceed in this way. I am afraid that is the case. We cannot say we are going to be directly implementing European Union law when we are no longer a member. We will not be. It amounts to that.
I accept that various views have been expressed by various parties about the scope of the rights that will be retained after we leave the EU without the charter, and there is a lively debate about that, but let us remind ourselves again that the charter has application only when we are directly applying EU law. My noble and learned friend Lord Mackay of Clashfern made the point. What happens to the right to dignity in circumstances where we are not directly applying EU law? Of course it still exists. We recognise that. We would have no difficulty in recognising that, and we do not require Article 1 of the charter for that purpose. In these circumstances, noble Lords have indicated, quite rightly, that to incorporate, or even to attempt to incorporate, the charter, particularly in the form of this amendment, is to do serious damage to our entire constitutional settlement, particularly post Brexit. I hear someone say, “Outrage”, and I agree with them.
I now come to Amendment 18, which was tabled by the noble Lord, Lord Beith. He suggested that his amendment would be a necessary consequence if Amendment 15 is carried, but I do not accept that it is a necessary consequence in those circumstances. His amendment, which seeks to remove the power in paragraph 2(2)(b) of Schedule 1 and the related provisions in sub-paragraph (3), is not appropriate. Schedule 1 generally ends the ability to bring challenges on EU law validity grounds to what will become retained EU law after we leave. After exit, individuals would continue to be able to challenge EU decisions before the CJEU and to have them annulled, in so far as they apply in the EU. The converted form of the decision would, however, remain in force within the United Kingdom. Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not think it would be right to hand them a wide-ranging new jurisdiction which asks them effectively to assume the role of the CJEU. The noble Lord’s amendment does not alter that general exclusion.
Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument which has been converted and should have a right to challenge it. For example, it would be strange if after exit a UK business were able to challenge and have struck down an EU decision which prevents it carrying out certain trading activities within the EU but would not have any equivalent right of redress in relation to the form of that decision which has been retained as part of UK law. It is for that reason that provision is made for this power. I note the noble Lord’s observation that it may be exceptional and may never be used. I accept that, but it is felt that it should be there as a safety measure. I urge the noble Lord not to insist on that amendment.
With regard to the position of the noble Lord, Lord Pannick, I ask him to think again about Amendment 15. I ask him to think very carefully about the form of it and what he is actually attempting to bring into domestic law, because it simply does not fit. It is in those circumstances that I invite him to withdraw his amendment.
Lord Pannick
My Lords, this has been a powerful and passionate debate and I thank all noble Lords who have spoken, whether they have supported Amendment 15 or opposed it. In particular I thank the Minister, even though he thinks I lack—what was it?—the delicacy of touch that is appropriate in these circumstances. I am going to go away and work on it.
I shall attempt—briefly, because we have had a long debate—to answer the main points that have been made against the amendment. The noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Mackay of Clashfern, expressed concern that the charter of rights will enable courts to strike down legislation. The noble Lord, Lord Howarth, expressed a similar concern: “What about parliamentary democracy?” was his theme. The Minister put his case very high: he said it was “shocking” and a constitutional outrage that we should be bound after exit by a body of foreign law. I have to ask him to read his own Bill because under the Bill, if a statute enacted before exit day is inconsistent with any part of retained EU law, the statute gives way. It is the supremacy of retained EU law—see Clause 5(2). So a concern about parliamentary sovereignty is no basis for excluding the EU Charter of Fundamental Rights from retained EU law. Legislation that is enacted after exit day will take priority over all retained EU law, which, if the amendment is passed, will include the charter. That is how the Bill asserts the sovereignty of Parliament, together with Clause 7, so this is a complete red herring. Amendment 15 has nothing whatever to do with the sovereignty of Parliament. The Bill deals with the sovereignty of Parliament in a perfectly acceptable way. It maintains the sovereignty of Parliament. We can do what we like after exit day, whether or not Amendment 15 is approved.
The noble Baroness, Lady Deech, criticised the drafting of the charter. However, in the context of a Bill that is designed to secure legal continuity on exit day, it cannot be right for noble Lords to point to individual provisions in the charter that they do not like or which are poorly drafted. The reason is that noble Lords could carry out the same exercise on every regulation or directive that is to be part of retained EU law and is being read across. Again, that is no basis for singling out the charter.
Then there were complaints from the noble Baroness, Lady Deech, and the noble Lord, Lord Faulks, expressing concerns about judgments by the European Court of Justice. Under Clause 6 of the Government’s own Bill, though, it is only judgments handed down before exit day that are binding, and only up to the level of the Supreme Court. Judgments that are given by the Court of Justice in Luxembourg after exit day are simply not binding on our judges; it is up to our judges whether they follow what the Luxembourg court may say in future. I emphasise a point I made in opening this debate: neither the noble Baroness, Lady Deech, the noble Lord, Lord Faulks, the Minister nor anyone else has given any examples of judgments given by the Court of Justice in Luxembourg on the charter to which they take exception.
Finally, the noble Lord, Lord Cavendish of Furness, told the House in a striking intervention—I hope I quote him correctly—that the good Samaritan did not need a bunch of lawyers to tell him what do. I say to him and to the House that, unfortunately, government and other public bodies often need to be told by judges what to do. I say to the noble Lord, Lord Shinkwin, that Parliament has often failed to protect fundamental rights. Without enforceable human rights, the victims of injustice and discrimination can and do go unremedied in the context of employment, equality or property rights. I say to the noble Lord, Lord Cavendish, and others on his Benches that if a Labour Government under Mr Corbyn were to be elected, they would be glad of the ability of courts to listen to human rights cases to secure remedies against arbitrary state action. They should think about that point, which I put forward as a Cross-Bencher.
As I said in opening this debate, to exclude the charter from retained EU law is unprincipled and unjustified. The House has heard no coherent defence of the Government’s position. I wish to test the opinion of the House.
The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)
I thank the noble Baronesses for their contributions. I believe, and am comfortable saying, that when we exit the EU the corpus of EU law on which we will build our foundations will be a strong one. At our last gathering, I was able to give assurances on the working time directive, which I hope were welcomed on all sides of the House. The key aspect here is simple: we should not solely be looking towards the EU as we consider what is happening on the wider question of family-friendly employment.
I had a pleasant discussion earlier today with the noble Baroness on the key elements of the amendment. She knows that I am not able to give the words of comfort that she is looking for, but I am able to give different ones. They are not specific to the Bill but are, more broadly, about what the Government intend to do and how we will do it. I will iterate those in due course. For example, the work-life balance directive is at present in its very early stages in the European Union. Because of where it is in the process, there is every prospect that it will not have secured enough progress before the European Parliament rises for the elections. Thereafter it will have to be retabled and greater time spent bringing it back to its current state. I would much prefer that the elements contained in that directive were taken forward by the Government in good time and good order. Post Brexit, it must be our ambition not to await what others are achieving but to see the direction in which they are facing and move as quickly as we can. Your Lordships’ House, and the lower House, must be at the forefront of these endeavours.
I spoke in Committee about these policies not being barnacles on the boat. It is absolutely clear to me that they do not drag us back; they are integral to the engine that drives us forward. Equally, it is important that the committees of both Houses recognise their roles both in holding the Government to account and in casting their eyes as widely as they can to initiatives, policies and case studies that make a difference across the globe. There is much that we can learn, not just from the EU but from its member states. For example, it is not the EU itself but some member states inside it that are driving forward wider LGBT issues. Malta and the Netherlands are pushing far beyond where the EU stands, as are we ourselves. Looking at some of the wider gender equality issues, I would never paint where we are as rosy. Until we have reached absolute parity and certainty, there are not enough roses in the garden to say that. It is always a journey and we need to be moving toward that. We can learn lessons from examples across the globe. I hope that committees of this House and the other place are able to act as the antennae, seeing and hearing what is out there; to develop invaluable reports; and to hold the Government to account for recognising what those reports can achieve as we cast our eyes more broadly.
I cannot give the words of comfort on the amendment that the noble Baroness would like. In some respects, I am disappointed that I cannot. However, I commit, on behalf of the Government, to meet the noble Baroness, and to write to her and other noble Lords, setting out clearly and exactly what the UK Government intend to do in this area, where we are, what the rights are that we need to move forward on and how we intend to do that. I suggest that that happens regularly, not just once. The regularity and frequency has yet to be determined but I suggest that we have a dialogue about it. The noble Baroness will be aware that I am not the lead Minister on this, just the lead Bill Minister in this area, but I am committing, on behalf of my colleagues in the Government, to fulfil that obligation. I hope that will give some comfort. This is a journey and we are not yet far enough along. I am sorry to disappoint the noble Baroness on this occasion, but I cannot give her the words of comfort she would prefer to hear on the specifics of her amendment.
Baroness Lister of Burtersett
My Lords, I am very grateful to those who have spoken in support of the amendment, particularly the noble Baroness, Lady Altmann, from the Benches opposite. They all used the word “reassurance” and, as he said, the Minister does not feel able to give me the reassurance I was seeking. I understand that, but welcome the fact that he has tried to go as far as he can. In a sense, he has implicitly acknowledged the case, even if he is not giving me reassurance. At the outset, I made it clear that this in no way stops us looking to other countries as well as to the EU, but we are—and will still be—a member of the European family. I will always be a European, as we all will, and that is where we should look first.
I welcome the Minister’s commitment on behalf of the Government. It is not just about meeting with me. I suggest a formal or informal all-party grouping of Peers who have supported the amendment, such as the noble Baroness, Lady Altmann, and organisations such as Working Families, to take this forward. Once the Bill is out of the way, perhaps we could have a meeting to discuss the appropriate mechanisms to do that. None of us can speak on behalf of committees and so forth, but if we are able to map out a possible way it would give us something.
I am disappointed, but I did not expect that much. I take a few crumbs of comfort from what the Minister has said and I am grateful to him. I hope that, once the Bill is out of the way, we can use those crumbs to build something of a loaf. With that dreadful metaphor, I beg leave to withdraw the amendment.
Lord Warner (CB)
My Lords, I will move Amendment 17A in my name and those of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Jolly and Lady Finlay. The purpose of the amendment is to improve the legal protections of public health post Brexit. It does that by ensuring that those parts of Article 168 of the Lisbon treaty that are concerned with public health are part of retained EU law after exit day. I will try to explain briefly why this is an important matter of such concern to so many people involved with public health who have briefed your Lordships throughout proceedings on the Bill.
Clause 4 of the Bill includes within retained EU law directly enforceable provisions of the EU treaties. The legal advice that I have been given by three professors of European law at the Universities of Sheffield, Essex and Cambridge is that it is not clear whether it includes other provisions of the EU treaties, such as Article 168 of the Lisbon treaty. As far as I can see, the Government have been unwilling to say that it does cover those other provisions. So far on the Bill, Ministers have simply asserted that the amendment is unnecessary because our public health policies are excellent and often better than many in the EU. That, of course, fails to answer the exam question: is Article 168 part of retained EU law under the Bill? The latest letter to Peers from the noble Lord, Lord O’Shaughnessy—whom I am glad to see in his place—which incorporated Jeremy Hunt’s article, still fails to tackle the exam question.
Why am I making so much fuss over Article 168? I will not repeat all I said in Committee. However, I will remind the House of Mr Justice Green’s High Court judgment on 16 May 2016, on plain packaging of tobacco products, in which, at paragraph 441, he emphasised that Article 168 places public health,
“at the epicentre of policy making … and how ‘all’ EU policies must ensure a ‘high level of human health protection’”.
This was a significant element in his finding in favour of the Government, and Mr Justice Green’s findings were further endorsed by the Court of Appeal, rejecting the tobacco industry’s appeal in its judgment dated 30 November 2016. At paragraph 201 of the Court of Appeal’s judgment it says:
“The judge was entitled to place the weight he did on the public health objectives of the Regulations: his approach was in line with the high level of human health protection provided for in EU law”.
It is one of life’s little ironies that this Government have benefited from these EU protections. Two clear and reasonable inferences can be drawn from the Court of Appeal judgment. First, the public health protections in Article 168 should be regarded as part of retained EU law after Brexit, and secondly, the EU legal public health protections may well be more robust than those in UK law.
I turn briefly to the level of public health support for this amendment. The uncertainty caused by the Government’s approach has united the Medical Royal Colleges and wider health community, all of whom have given consistent support to this amendment. To date, 52 organisations, including the Royal College of Physicians, the Faculty of Public Health and many major charities such as Cancer UK, Diabetes UK and the Alzheimer’s Society are backing the amendment. They do so, in my judgment, because they fear that after Brexit, hard-won legal protections for public health will be sacrificed in a rush to do trade deals. Given the speeches of some Ministers, who can blame them?
The simplest way to satisfy all these concerns is to put matters beyond legal doubt. We are well past the time for further warm words from the Minister. Matters need to be made clear in the Bill by an amendment along the lines of Amendment 17A. I provided the Minister with a little more time to think about this at our meeting last week by deferring consideration of the amendment until today. I hope that he has used the time wisely and that he can now agree to accept it. I beg to move.
Lord Duncan of Springbank
I have some points which may be helpful to make at this moment, before the full discussion gets under way, and I may seek to clarify our position. However, I will of course respond to the wider debate in due course—I am not trying to cut off any of the points which might be made. The noble Lord, Lord Warner, was indeed kind to me last week; we sat down and he agreed to allow me a greater amount of time. I will therefore say words which may bring him some comfort with this point in mind.
Public health is a vital issue—there is no doubt about that. I accept that we have not thus far provided sufficient assurance to the noble Lord or to his noble backers on the issue of public health. I am therefore grateful that we have had this extra time to look at the issues that underpin the matters before us today. I have used that time wisely in meeting with both the noble Lord, Lord Warner, and my noble and learned friend Lord Mackay of Clashfern. I thank them both sincerely for their time.
Lord Duncan of Springbank
This has been a short debate but an instructive one. I am somewhat sorry that we have not had longer to share with noble Lords the remarks that I made this afternoon. The key thing about the statement I made earlier, and I suppose it was one of the aspects at the heart of the concluding statements from the noble Lord, Lord Hunt, was about the notion of trust. I am tempted to say, as I used to say many years ago, “You can trust me. I’m a doctor”. but my doctorate is in palaeontology so I am afraid that that is perhaps not quite as useful in this regard. The important thing is not that noble Lords trust the Government or, indeed, any Government, but rather that the case law itself can be used to hold that Government to account.
In the case cited, the UK Government were the principal beneficiary across the entire EU when it came to the packaging of tobacco products. As the noble and learned Lord, Lord Mackay of Clashfern, confirmed, we did not explain well enough that these particular rules and aspects of Article 168 are and will be available post Brexit. They will allow for the Government—if need be—or others, to be challenged, drawing on the elements of Article 168 as they stand today and as they will stand after Brexit.
In truth, the Government are broadly neutral on the concept of the amendment, primarily because we recognise that the functionality of Article 168 will not be undermined by what happens as we go forward. For that reason, I am afraid that I am not able to give greater comfort on this occasion. Indeed, should the noble Lord wish to test the House, I shall in due course suggest that he does so.
However, before I get there, it is important to stress that the UK Government were a principal beneficiary of the Article 168 approach and the concept of public health being at the epicentre of law-making. Due to the broadly established case law and, ultimately, the interpretation that will rest in the hands of the domestic courts, I believe that we are in a strong position. I know that matters of wider trade were raised, and there will be opportunities to discuss those as we look at these questions at another time, but as far as the amendment is concerned, I believe that as my noble and learned friend Lord Mackay affirmed, we are now in a good position to offer certainty, which is worthy.
Lord Grocott (Lab)
I very much agree with the point that the noble and learned Lord has made. It may not be within the normal rules of a Report stage debate to have the kind of circular arguments that we have had but, without having the Companion in front of me, I am pretty certain that I am accurate in saying that this is precisely the kind of occasion when it is appropriate to consider a matter again at Third Reading. The rules on when you can bring forward amendments at Third Reading are quite restrictive but, where the Government effectively announce a change of policy or, at the very least, give a further clarification which this side of the House has no opportunity to consider in detail, I cannot see that anyone loses any face whatever. It is entirely consistent with the way in which Third Reading operates for the Government to say, “We may or may not be able to accommodate it but we’ll look at it again at Third Reading”.
Lord Duncan of Springbank
For the good of my own health, we will reflect on this matter and we will be able to come back to it in due course. In the meantime, we will ensure that the intervention is circulated widely so that noble Lords can see exactly where we stand on this matter. I hope that that is helpful.
Lord Warner
Well, my Lords, if you just sit here, things work themselves out. I am grateful to the Minister for his intervention and I am extremely grateful to the noble and learned Lord, Lord Mackay of Clashfern, for all the help that he has given behind the scenes and to me personally on this matter.
What I have to say to the Minister is aimed not so much at him as at a few of his colleagues. They have been a bit slow in coming to the party. These legal judgments have been around for quite a long time and one would have expected DExEU to have mastered these things at an earlier stage. However, in the circumstances, and with my thanks to the Minister for showing flexibility while he was on the Bench, as well as in his interventions, we will come back to this at Third Reading. I will make sure that all the backers of the amendment have time to read everything, and I beg leave to withdraw the amendment.
Lord Keen of Elie
My Lords, I wonder whether, with the permission of the House, I might respond to the noble Lord, Lord Pannick. I appreciate that there may be other contributions, which I will seek to answer, but it may help the House if I indicate the Government’s position on the four propositions put forward by the noble Lord, Lord Pannick, so that we can be clear on the way forward. I shall seek to move government Amendments 23, 24 and 25, which directly address and respond to the concerns raised by many noble Lords when your Lordships last debated the matter in Committee. I hope that noble Lords will support those amendments; I note in passing that they bear a striking resemblance to Amendment 21, tabled by the noble Lord, Lord Pannick, and Amendment 22, tabled by my noble friend Lord Faulks, whom I cut across a moment ago.
For the avoidance of doubt, I want to make clear that the provision in Clause 6(2) does not seek to legislate to give effect to the content of a withdrawal agreement or implementation period. If there is a role for the Court of Justice as part of that agreement, as has been set out in the joint report on citizens’ rights, it would be legislated for under the separate withdrawal agreement and implementation Bill. I reiterate that Clause 6(2) has always intended to make clear that, after exit, UK courts will no longer be bound by future judgments of the Court of Justice. Instead, our courts will be free to take them into account when making their decisions, just as they would also be able to consider anything done by another EU entity or the EU itself. This approach reflects the Government’s core belief that our domestic courts are best placed to consider whether, and to what extent, to have regard to post-exit Court of Justice case law.
Lord Goldsmith
My Lords, the noble Lord, Lord Spicer, has made a very interesting observation, but it seems to go wider than the amendments which the House is being asked to approve, so I shall not say anything about the issues that he has raised. He referred to the “remain tactics”. I am not aware that there are any remain tactics in relation to this amendment. On the basis that we are leaving, all the amendment is about is making sure that it works properly. That has certainly been the guiding principle as far as I am concerned.
On the formulation of the amendment, I do not want to use the word “helpful”, because that is the one word that I do not like—the noble Lord, Lord Faulks, knows that. The problem with “helpful” is that it is a little subjective. A noble Lord, who is not in his place so I shall not identify him, told me in the previous debate that he was going to say something. I said, “Okay. Is it going to be helpful?” He said, “You might think so”. Let me tell you that it was not helpful at all. He might have thought it was, which is the problem with “helpful”. In any event, I do not imagine that the courts will have regard to something that they do not think is helpful for the purpose of the issue before them, so I am happy with “relevant”. The important point is that it will not be perceived as a political decision being made by a court in wanting to follow a decision from the European court. That is the point that we were making in earlier stages on this part of the Bill, and I thank the Minister and his department for dealing with it.
That leads to the fourth question asked by the noble Lord, Lord Pannick, which was about the protection, safeguarding and upholding of the independence of the judiciary. We raised that on the previous occasion; it is hugely important. I join the noble Lord in congratulating the noble and learned Lord, Lord Keen, on coming out and supporting the judiciary at a time when others in government sadly were not. The assurance on that sought by the noble Lord, Lord Pannick, is important, and I am grateful that the noble and learned Lord has succeeded in answering it already—it was slightly out of turn, but it was good. I shall ask him to go a little further, because the obligation to uphold the independence of the judiciary does not rest just on the Lord Chancellor. I believe that the Constitutional Reform Act which set that out imposes that obligation on the whole of the Government, and it is important that it should. We cannot have a situation in which one Minister, in perhaps one of the more political jobs, is able to say unhappy and unhelpful things about the judiciary and think it okay because the Lord Chancellor will stand up and say, “We shouldn’t really be doing that; we should be protecting them”. It is important to recognise that it is the whole Government. I would single out as well the Attorney-General as one who should uphold the independence of the judiciary. When I was in that office, I certainly regarded it as part of my job, although the Lord Chancellor was in that primary position. I would be grateful if the Minister when he replies for the second time could touch on that point and see what assurance he can give.
The noble and learned Lord, Lord Thomas, raised an important point about ossification, as he put it, which is the one worry I have. As this structure works, so far as the Government are concerned, I think that the effect is that, in the areas to which the subsection would apply, the lower courts will be bound to follow decisions within that scope and it is only the Supreme Court that will be able to depart from them. That leads to the risk that the law will ossify and that cases will have to go to the Supreme Court which really do not need to because they are not that important—although it is important to clarify the law. The noble and learned Lord’s suggestion that the Government should look at the possibility of widening this so that the courts of appeal in different parts of the United Kingdom would be able to depart from what would otherwise be binding law is a good one.
I think that this suggestion would also be welcomed by some others—although I have not specifically raised this with them—who are worried about this provision. They are aware that there are rights—for example, in the field of workers’ rights—where there is some movement in EU law and are concerned that, as it stands, the retained EU law that we will have will lag behind what happens in other jurisdictions, which we all hope will still be partners, although not partners in the same Union. They are concerned that if this has to go to the Supreme Court it may create an unhappy difference between them. There may be circumstances where we all know that a particular piece of law is right for consideration by the top court, but it takes time to get there and it may not always get there.
I was going to ask the Minister whether he could give any assurances about how the Government would assist, at least where they are the other party, in getting cases to the Supreme Court where there is good reason to think that a relevant decision will be departed from. But it seems to me that opening this up to the courts of appeal would actually be a neater and more traditional way of doing that. I look forward to hearing what the Minister has to say about that. I should have mentioned at the outset that my name stands on the original amendments as well.
Lord Keen of Elie
My Lords, I am obliged to noble Lords for the contributions that have been made. With respect to the point raised by the noble and learned Lord, Lord Goldsmith, about the position of the Lord Chancellor and the rest of the Government, perhaps I might repeat what I said earlier: I assure the House that the whole Government, the Lord Chancellor especially, steadfastly defend the independence of the judiciary. I believed I had said that before but I am happy to repeat it.
On this question of the ossification of the law, which has been raised, particularly by the noble and learned Lord, Lord Thomas—indeed, it is a matter that we have discussed—we have to remember that until exit only the Court of Justice of the European Union is in a position to see us depart from a previous decision of that court. The timeline for taking a case through the CJEU does not bear scrutiny in comparison with the timeline for taking a case to the United Kingdom Supreme Court. The feeling of the Government is that if we are removing the Court of Justice of the European Union, it is appropriate to put in its place the United Kingdom Supreme Court in that context, and that is what we have sought to do and what we intend to do.
That is a policy decision, I appreciate, and there is a suggestion that perhaps it can be brought down to the Inner House of the Court of Session, and the Court of Appeal. That has been considered, but we do not feel at this time that that is the right way forward, so I cannot give any reassurance that we intend to revisit that point. I feel that the decision we have made is the appropriate one in the circumstances but clearly we will have to consider in due course whether that gives rise to any difficulties with respect to the reference of cases to the Supreme Court.
As the noble and learned Lord, Lord Goldsmith, is aware, it is open to the Supreme Court to, in effect, accelerate cases that it considers to be of particular materiality of importance. Therefore, that facility is already available. But I have discussed this matter with the noble and learned Lord, Lord Thomas, and it is not our intention to revisit it before Third Reading. I hope that noble Lords will be able to support the government amendments.
Lord Keen of Elie
Lord Callanan
“Status of retained EU law
(1) Anything which—(a) was, immediately before exit day, primary legislation of a particular kind, subordinate legislation of a particular kind or another enactment of a particular kind, and(b) continues to be domestic law on and after exit day by virtue of section 2,continues to be domestic law as an enactment of the same kind.(2) Retained direct principal EU legislation cannot be modified by any primary or subordinate legislation other than—(a) an Act of Parliament,(b) any other primary legislation (so far as it has the power to make such a modification), or(c) any subordinate legislation so far as it is made under a power which permits such a modification by virtue of—(i) paragraph 3A, 3C(3)(a) or (4)(a), 3F(3), 5A(3)(a) or (4)(a), 5B(2)(a) or 5C(3) of Schedule 8,(ii) any other provision made by or under this Act,(iii) any provision made by or under an Act of Parliament passed before, and in the same Session as, this Act, or(iv) any provision made on or after the passing of this Act by or under primary legislation.(3) Retained direct minor EU legislation cannot be modified by any primary or subordinate legislation other than—(a) an Act of Parliament,(b) any other primary legislation (so far as it has the power to make such a modification), or(c) any subordinate legislation made under a power which permits such a modification by virtue of—(i) paragraph 3A, 3C(2), 3F(3), 5A(2) or 5C(3) of Schedule 8,(ii) any other provision made by or under this Act,(iii) any provision made by or under an Act of Parliament passed before, and in the same Session as, this Act, or(iv) any provision made on or after the passing of this Act by or under primary legislation.(4) Anything which is retained EU law by virtue of section 4 cannot be modified by any primary or subordinate legislation other than—(a) an Act of Parliament,(b) any other primary legislation (so far as it has the power to make such a modification), or (c) any subordinate legislation made under a power which permits such a modification by virtue of—(i) paragraph 3A, 3C(3)(b) or (4)(b), 3F(3), 5A(3)(b) or (4)(b), 5B(2)(b) or 5C(3) of Schedule 8,(ii) any other provision made by or under this Act,(iii) any provision made by or under an Act of Parliament passed before, and in the same Session as, this Act, or(iv) any provision made on or after the passing of this Act by or under primary legislation.(5) For other provisions about the status of retained EU law, see—(a) section 5(1) to (3) (status of retained EU law in relation to other enactments or rules of law),(b) section 6 (status of retained case law and retained general principles of EU law),(c) section 13(2) and Part 2 of Schedule 5 (status of retained EU law for the purposes of the rules of evidence),(d) paragraphs 8 and 9 of Schedule 8 (status of certain retained direct EU legislation for the purposes of the Interpretation Act 1978), and(e) paragraph 19 of that Schedule (status of retained direct EU legislation for the purposes of the Human Rights Act 1998).(6) In this Act—“retained direct minor EU legislation” means any retained direct EU legislation which is not retained direct principal EU legislation;“retained direct principal EU legislation” means—(a) any EU regulation so far as it—(i) forms part of domestic law on and after exit day by virtue of section 3, and(ii) was not EU tertiary legislation immediately before exit day, or(b) any Annex to the EEA agreement so far as it—(i) forms part of domestic law on and after exit day by virtue of section 3, and(ii) refers to, or contains adaptations of, any EU regulation so far as it falls within paragraph (a),(as modified by or under this Act or by other domestic law from time to time).”
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, the way in which retained EU law will be treated in our domestic statute book—what has been termed the “status” of EU law—is undeniably an important issue. It has been one of the key themes of our debates on the Bill, and the Government’s attempts to deal with it are woven throughout the Bill. The Government have always recognised the importance of getting this right—above all, in the context of the question of amendability.
These amendments, which deal with the amendability of retained EU law by secondary legislation, are to a large extent about ensuring its enhanced protection. As noble Lords will know, the House debated one way of giving enhanced protection to some parts of retained EU law last Wednesday, when it agreed to add a new clause to the Bill. Before setting out the government amendments, I will take a moment to explain to the House why the Government consider that the approach adopted last Wednesday is not the answer.
Amendment 11 in the name of the noble Baroness, Lady Hayter, carried last Wednesday, prevents crucial corrections being made in time for exit day. By failing to define key terms, and by introducing into the Bill arguably undefinable concepts such as “technical changes”, it introduces a high level of risk to attempting to take forward even the most uncontentious of corrections by secondary legislation. We have always been clear that most corrections, however innocuous and benign, require some limited policy choices.
Those corrections are how we ensure that current protections continue to operate. Our analysis is not complete but we believe that a very significant proportion of the planned secondary legislation programme, if made, would be at real risk of legal challenge, so the result of that amendment could be an enormous increase in the volume of needless primary legislation, which this House would then have to consider before exit day. In the end, we might be unable to achieve our core objective of ensuring a functioning statute book on exit day.
The volume of legislation required to keep pace with developments is already too great for it all to be done through primary legislation and this is likely to increase when we take on the legislative responsibilities of the EU. It is incumbent upon all of us to ensure that we put in place a balanced system. That system must enable the House to fully scrutinise the most significant changes to legislation and maintain the existing protections that we all value, while allowing for flexibility to keep pace with a fast-evolving world. It would be a dereliction of our duty to put in place a system which leaves Parliament unable to make important changes or updates which would enhance existing protections, such as the regulating of new hazardous chemicals or extending standards to new marine contaminants.
Parliament has debated at great length the speed at which our legislation should diverge from that of the EU but, whatever that pace, we must not leave Parliament hamstrung. The Government’s approach is to respect the balance between maintaining protections and the flexibility to reflect developments.
I know some noble Lords were in favour of deeming elements of retained EU law converted under Clauses 3 and 4 that are not already part of our domestic legislation to be one or another type of domestic legislation. Unfortunately, it is not that simple. For example, to deem an EU regulation primary legislation has all sorts of impacts, ranging from the problematic to the bizarre, such as requiring it to be printed on vellum and stored in the Queen Elizabeth Tower. Some noble Lords also wish to treat all retained EU law that is not already domestic legislation as if it were primary legislation. I recognise that noble Lords who have advocated this have the best of motivations, but it would leave the law so rigid and inflexible as to be virtually inoperable. The EU adopted just under 500 amending pieces of tertiary legislation in 2017. If this Parliament takes on the role of doing the same when those powers are returned to this Parliament by primary legislation only, we face a serious risk of these regimes ceasing to function.
I know the House loves examples, so let me provide one. Say that the Commission adopts delegated Acts under the biocidal products regulation to restrict active substance entry to the market. This is clearly an important public health matter which should continue to be adjusted rapidly and without primary legislation. Incidentally, that is also something that Amendment 11 would prevent. There are many similar examples in EU legislation and they vary as much as our domestic delegated powers. Therefore, instead of treating all direct EU legislation as domestic primary legislation for all purposes, the Bill sets out how retained EU law is to be treated in a number of specific situations, such as for the purpose of the Human Rights Act. Our amendments to the Bill for several of those purposes draw a similar distinction to that which the noble Baroness, Lady Bowles, has drawn in her Amendment 39. That is that EU measures adopted under co-decision or ordinary legislative procedure are to be treated as primary legislation.
We have proposed, broadly, that EU regulations and Clause 4 rights should be treated as primary legislation for the purpose of amendability and that tertiary legislation should be treated as subordinate legislation. Regulations and Clause 4 rights will therefore be amendable only by primary legislation and the very limited stock of powers to amend primary legislation on the statute book. Even then, those powers will operate only where the context will permit. This will ensure that the frameworks of retained EU legislation are maintained and can be adjusted only in the same way Acts of Parliament can, but that the technical matters underneath them can be adjusted by subordinate legislation to react quickly to the changing circumstances of the day, as now.
Our amendments provide that, in the future, Parliament will need to agree any new delegated powers to amend a specific regulation, or regulations. This House will be the gatekeeper that ensures there is no bonfire of EU regulations. This will include all the powers that we are transferring under the Bill from the Commission to UK Ministers and authorities. These are generally very tightly drafted and it will have to be clear to the House where and how they can amend regulations. If Ministers cannot justify this to noble Lords, they will not be granted these powers. However, I hope your Lordships will agree, for example, that the Secretary of State should be able to adopt measures such as the wine oenology implementing regulation to ensure that our wine producers are not left behind the rest of the world as technology advances. I know that would be a subject close to many noble Lords’ hearts.
Beyond amendability, there are a limited number of other places where matters turn on whether a law is found in primary or secondary legislation. This is the case in relation to the Human Rights Act, where the remedies available in response to challenges are different in different cases. We have therefore also reflected the distinction that EU regulations are to be treated as primary and EU tertiary legislation as subordinate for the purposes of the Human Rights Act. This will mean that, as with primary legislation, claimants will be able to receive a declaration of incompatibility in the event of a successful challenge to an EU regulation. I should point out that this is a very rare measure, which I am not aware that Parliament has ever ignored. For challenges against amendments to EU tertiary legislation, our courts may, if appropriate, strike down the legislation.
We have addressed in the Bill the areas of importance where matters turn on the distinction between primary and subordinate legislation. Our discussions outside this Chamber, including with academics and others, have not identified any other such matters. I am happy to return to the issue at Third Reading if other areas are raised in debate.
I have not yet addressed directives, which I know the noble Baroness, Lady Hayter, is very interested in. Directives, of course, do not form part of our domestic legislation. They have already, over the years of our EU membership, been implemented in primary legislation and under a range of delegated powers but principally in regulations made under Section 2(2) of the European Communities Act. The status of these regulations is clear. They are and should remain statutory instruments. I know that these regulations contain important protections which some noble Lords wish to ensure cannot be easily eroded, but it would be constitutionally deeply questionable and practically unnecessary to attempt simply to declare these instruments to be anything different.
All regulations made under Section 2(2) of the ECA will be preserved following the repeal of that Act by the Bill. There will then be almost no powers on the statute book; I cannot be absolutely definitive, but my officials have found only a handful which, within the scope of the policy area, might be able to amend regulations made under Section 2(2). Therefore, almost all of these regulations will need to be modified by primary legislation or new powers, which this House would of course have to approve. Nevertheless, the Government have heard the concerns raised in the House about the level of scrutiny of modification of these regulations. We are committed to ensuring that the protections provided in regulations made under the ECA are maintained throughout the process of exit, and that any future modifications as the Government continue to build on these protections are properly scrutinised.
The Bill already provides for statements in relation to the SIs under it, so government Amendment 112A therefore requires Ministers and other authorities making statutory instruments under powers outside this Bill after exit day to make statements explaining the “good reasons” for any changes to regulations made under Section 2(2) of the ECA and the effect of the amendment or revocation on retained EU law. There will be no escaping the scrutiny of this House.
I am sorry for the detailed explanation, but I hope I have provided an appropriate explanation of why these amendments both give clarity to the status of retained EU law and are the right way to protect it as we transfer it on to our statute book. I recognise that the status this legislation should hold is a particularly complex issue, on which legal and academic minds have differed. I pay tribute to all noble Lords who have applied themselves to the task. We have listened and I appreciate all the contributions that have been made. Our amendments reflect a sensible approach, one that recognises and reflects the existing hierarchy within EU laws, balances the need for effective parliamentary scrutiny while giving Parliament the flexibility it needs to amend an extremely large body of legislation, and allows this place to truly take back control of our laws. I beg to move.
Lord Pannick
My Lords, your Lordships’ Constitution Committee recommended at paragraph 51 of our report—HL 69—that the Bill should address the legal status of retained EU law; that is, whether it has the status of primary legislation, secondary legislation or something distinct. I am pleased that the Government have considered this matter—I am grateful to the Minister—and have produced the amendments in this group. My understanding is that they address the problem by ensuring that any domestic law which becomes retained EU law under Clause 2 continues to have the same legal status that it has at the moment: it is either primary legislation or secondary legislation.
In relation to retained EU law under Clauses 3 and 4, the amendments do not so much confer a legal status as address the problem by reference to the circumstances in which the retained EU law can be modified. The provisions are complex, and, I fear, necessarily so, given the inherent difficulty of the exercise.
Lord Goldsmith
My Lords, I think three things emerge from that. First, there is a recognition, with thanks, that the Minister and the department have accepted that their previous approach to how you identify the status of retained EU law is not acceptable. That was the primary point made in the reports that we discussed at earlier stages of the Bill, and that is the first point that the noble Lord, Lord Pannick, made. I entirely agree that that is undoubtedly a step in the right direction.
The second point that emerges is the one made by the noble Lord, Lord Cormack, that this touches on the amendment passed by the House and moved by my noble friend Lady Hayter, and the Government therefore have to take account of what this House has said. That leads to the third point, which is that this is very complicated, which was apparent from what was said by the noble Baroness, Lady Bowles, and it is perhaps difficult for us all to completely grasp the implications. Under normal circumstances it would have been enormously helpful if the Government had tabled something like this at an earlier stage so that it could have been considered by our very expert committees, the Constitution Committee and perhaps the Delegated Powers Committee. It makes it more difficult for us. However, the Minister has recognised that more needs to be said about this and more needs to be discussed, which is why he proposes that—as the noble Lord, Lord Cormack, says, perhaps alone of the matters that we have discussed—this issue can come back at Third Reading.
I am not quite sure at the moment exactly what the Minister has in mind. Does he want to press these amendments today and then discuss them—or just leave them until Third Reading, which would be very welcome? I am glad that he is giving a nod that that is what he has in mind, which is what I would hope. In those circumstances, meetings with noble Lords, and indeed noble and learned Lords, can be organised to consider the matter further. Obviously we will read what he said very carefully in Hansard, and if there is any further information that the Minister can give before the meetings then that would be helpful as well. On that basis, we express qualified support for the principle of the movement that the Minister has indicated.
Lord Callanan
My Lords, I can be very brief in the light of the debate. I thank all noble Lords who have contributed. I express particular thanks to the noble Baroness, Lady Bowles, for tabling her amendment, which has resulted in this helpful debate.
As I said in opening, I recognise that the state of this legislation is a complex and vexed issue. As a non-lawyer, I have been struggling to get my head around it all as well. The approach that we have taken is one of pragmatism, recognising the existing hierarchy within EU law and seeking to balance effective scrutiny with the need to ensure that the law continues to function. This has not been an easy task but obviously I believe that the solution that we have arrived at is the right one. I accept that the remarks I made earlier were long and detailed and Members will want to reflect on them, so I shall repeat what I said: we think we have addressed the areas of importance where matters turn on the distinction between primary and subordinate legislation. Our discussions so far with many both inside and outside this Chamber have not identified any other such matters, but I repeat that I am happy to return to the issue at Third Reading if other areas are identified.
I thank my noble friend Lord Cormack for his contribution. I hope my remarks were not seen as dismissive of the House’s amendment the other day; of course we accept the decision that was made, but I thought it helpful for us to outline our initial thinking on the possible effects of that amendment at the earliest possible occasion. I also thank the noble Lord, Lord Pannick, for his remarks. I am happy to confirm that either I or officials are happy to meet any other noble Lords who have concerns once they have had a chance to read the remarks that I made earlier today. With that, I hope I have convinced the House that our approach is the right one, and I beg to move.
Lord Callanan
I wanted to move the amendments now. I am happy to reflect further if any points are identified in the meantime that can be brought forward at Third Reading, but I still want to move the amendments.
Lord Goldsmith
I was asking the Minister whether he was prepared to leave these amendments to be moved at Third Reading or whether he wanted to proceed with them and then allow amendments to them. I had understood from the body language that was exchanged between us that he would move them at Third Reading, which would allow time for discussions and possible tweaking or perhaps something more radical. If he is going to move them now, though, it is important that he confirms he would not have a problem if amendments to his amendments were put forward at Third Reading, because that at least would mean that whatever was required could be dealt with then, rather than him moving his amendments now and for us to be told at Third Reading, “Sorry, too late, that amendment has been passed. You can’t bring it back”. Could he confirm that? Again he is nodding but I am reluctant to interpret the nod without an element of verbal assurance. Perhaps he can help with that.
Lord Callanan
Yes, I am happy to provide that assurance. As I said, it was a long and detailed speech on this area, and Members will want the opportunity to read it in detail and reflect further on it. I think I want to move my amendments now while indicating that, if there are still concerns, we would be prepared to return to the issue at Third Reading.
Lord Goldsmith
Forgive me; would he accept that amendments could be made even to these amendments? I am not suggesting that he will accept our amendments, but does he accept that they can be made?
Baroness Jones of Whitchurch (Lab)
My Lords, I support Amendment 27 and will speak to Amendment 41. I will explain, as my noble friend Lord Judd knows, our slight concerns about his amendment.
The noble Baroness, Lady Brown, along with a number of other noble Lords from around the House, spoke very eloquently on this issue. In their own way, they have all reinforced the point that this amendment is necessary to ensure that the current environmental protections exist after exit day with the same certainties and enforcement which have helped us shape our world-class environmental standards up to now. We have rehearsed before the importance that the EU has played in setting those standards. To deliver this certainty, we need the same core principles that apply to EU law to be transposed in full, and, more importantly, we need a new organisation to replace the enforcement powers operated by the EU Commission and the Court of Justice, which guarantee the standards that we currently enjoy.
When we debated similar amendments in Committee, they received widespread support from around the Chamber. That has been echoed this evening, and I very much hope that the Minister has heard those calls. In his response to that debate in Committee, the noble Lord, Lord Callanan, tried to reassure us and told us not to worry too much. He said that a number of environmental principles were also included in international treaties, such as the Rio principles, to which the UK will continue to be a signatory. Of course, it is true that some of those environmental principles do exist in other forms, but they are not all covered in the same range and depth as exists in the EU, and we do not have the same recourse to challenge breaches of these principles and demand compliance as we do within current EU structures. If we did, we would have been more successful, for example, in stopping the decimation of the Amazon rainforest, which sadly is causing enormous climate change problems across the globe. The existence of other international treaties is not sufficient grounds for the Government to back-track on this issue.
This brings us to another argument that the Minister used in Committee—that our amendments were not necessary as Michael Gove had already accepted the need for a new comprehensive policy statement setting out the Government’s environmental principles. So far, so good, but in a follow-up letter to a meeting we had with the noble Lords, Lord Callanan and Lord Gardiner, the noble Lord, Lord Gardiner, wrote to us to say:
“The withdrawal Bill will preserve environmental principles where they are included in existing EU directly applicable environmental regulations and case law”.
Our argument is that this definition does not cover the full scope of environmental principles as they currently exist. If we just use that definition—the definition that is currently in the Bill—we will lose out. That is why a promised new set of environmental principles is so important. But, as we have heard, time goes on and there is no sign of the Government’s statement or a timeline for implementation which would ensure that the new principles were in operation by March next year. Our amendment fills that time gap by setting out the key environmental principles currently in operation in the EU which should apply until we are able to agree a more comprehensive package of the kind that we have consistently been promised but which has not yet materialised.
Even more worrying is the governance gap, to which a number of noble Lords have referred. If we do not have an independent body to hold the Government to account after exit day, we will lose out. Michael Gove has acknowledged the need for such a body and has said that he intends to consult upon it but, again, no details have been published and the clock is ticking. It has also become clear that Michael Gove’s ambitions for such a body are not necessarily shared by Ministers in other departments—for example, Transport and Treasury Ministers are on record as saying they have a much narrower view of the remit of the watchdog.
The noble Baroness, Lady Miller, referred to the report on the Natural Environment and Rural Communities Act, which not only looked backwards but, helpfully, forward. It mentioned post-EU structures and the great advantages we have had from being in the EU, which we have all rehearsed. It went on to refer to the UK watchdog and said that it needed to be independent and accountable to government, with diffuse sources of funding and the ability to deal with issues raised by individuals and NGOs, including taking government and other public bodies to court. That is the kind of package we are looking for.
However, as noble Lords and my noble friend Lady Young have said, these things take time to set up and, again, the clock is ticking. It is hard to see how this body is going to be up and running by Brexit day. If it is not, our protections will be diminished. We hope the Minister has heard the strong arguments that have been put forward on this.
On Amendment 28, my noble friend Lord Judd knows that I agree with everything he said. The reason we did not put it forward as one of the amendments we wanted to have at this stage as an environmental principle is because it is not currently seen as an EU environmental principle. Therefore, while I agree with everything he said, it might be a battle that we have to fight another day.
We wholly support the amendment of my noble friend Lord Whitty. It had considerable support from around the House when it was debated the first time round and we have heard the same comments echoed this evening. When we debated it before, for example, my noble friend Lord Rooker made a compelling case for our continued involvement in the EU’s rapid alert system for food and feed, which provides a 24-hour alert to all EU countries on serious health risks from contaminated products. On that issue, the noble Lord, Lord Callanan, was only able to say that this would be subject to ongoing negotiation.
Similarly, when my noble friend Lord Whitty probed on the issue of REACH—which he again referred to today—the noble Baroness, Lady Goldie, was only able to say that our involvement was the subject of live negotiations but that we could not remain a member of REACH. She sought to reassure us and told us not to worry because work was starting on a new IT system to oversee registrations and regulation. That prospect should strike fear into all Ministers if they expect that new IT system to be up and running on time.
The amendment of my noble friend Lord Whitty is crucial. Food and chemicals are global industries which need shared standards, shared safety levels and shared risk procedures. If we do not use those shared methodologies we are in danger of a massive duplication. Apart from the unnecessary costs, this would also have implications for animal-testing data because we would be in danger of having to duplicate research on animals, with the resulting unjustified impact on animal welfare. This is an important issue.
I hope the Minister has heard the strength of feeling on this—we have been made promises which have not materialised—and that he is in the mood to reach out to us today and provide reassurance. Otherwise, I hope noble Lords who have proposed amendments will be prepared to press them to a vote when the time comes.
Lord Callanan
My Lords, we welcome the sentiments behind Amendment 27, tabled by the noble Baroness, Lady Brown of Cambridge, Amendment 28, tabled by the noble Lord, Lord Judd, and Amendment 41, tabled by the noble Lord, Lord Whitty. While the Government welcome the amendments as being well intentioned, as I have said before, we believe them to be ultimately unnecessary and in some elements they go beyond the existing environmental regulation that is in force today.
As the noble Baroness, Lady Brown, reminded us, when the Prime Minister launched the 25-year environment plan on 11 January this year, she said:
“Let me be clear, Brexit will not mean a lowering of environmental standards”.
We have already taken firm steps towards that goal, as my noble friend Lord Deben remarked. Our recent announcements include an increase in recycling rates in order to slash the amount of waste polluting our land and seas, a consultation on a deposit return scheme later this year and a ban on the sale of plastic straws, drinks stirrers and plastic-stemmed cotton buds. In line with this commitment, the Secretary of State for the Environment, Food and Rural Affairs announced on 12 November our intention to create a new comprehensive policy statement setting out our environmental principles, recognising that the principles on which we currently depend in UK law are not held in one place. It is intended that the new policy statement will draw on current EU and international principles and will underpin future policymaking, underlining our commitment that environmental protection will be enhanced and not diluted as we leave the European Union.
At that time, the Secretary of State also announced our intention to consult on a new, independent and statutory body to advise and challenge government and potentially other public bodies on environmental legislation, stepping in where needed to hold these bodies to account and being a champion for the environment. I can confirm for noble Lords that it is our intention to publish the consultation in time for the Third Reading of this Bill. The consultation will explore, first, the precise functions, remit and powers of the new statutory and independent environmental body and the nature, scope and content of the new statutory policy statement on environmental principles. It is of course important to gather the views of many stakeholders in this area before coming to any conclusions. Amendments 27 and 28 would prejudge the outcome of the forthcoming consultation by setting requirements in legislation now.
As my noble friend Lord Inglewood remarked, the purpose of the EU withdrawal Bill is to convert and preserve the law so that, after exit, the laws which we have immediately before exit day will, as far as possible, be the same as those we have now. This includes the wild birds and habitats directives, transposed through to domestic legislation, as well as the protection and enhancement of biodiversity as requested by the noble Lord, Lord Judd, in Amendment 28. I am sure that the noble Lord will be reassured to know that the UK is already a signatory to many of the multilateral environmental agreements that underpin such regulations, and that will continue to be the case after we have left the European Union.
The environmental principles are framed in the EU treaties as general objectives for the EU rather than having a direct, binding effect on the delivery of EU measures by member states. Amendment 27 goes further than that, in particular by placing a duty on all public authorities to apply the environmental principles listed in the amendment. This duty does not currently exist either in EU or UK law, and it is not appropriate for this Bill to introduce new powers of that kind.
In addition, a significant proportion of environmental policy and legislation is of course devolved. We need to take account of the different government and legal systems in the home nations as well as the different circumstances of the different parts of the United Kingdom. Amendments 27 and 28 risk compromising consideration of these important issues, as well as the wider devolution settlement, by requiring the UK Government to take UK-wide action. This includes requiring the UK Government to publish UK-wide proposals for governance and principles. Our starting point is that the new statement of principles and environmental body should cover England and environmental matters that are not currently devolved. If the devolved Administrations would also like to take action on these issues, then of course we are open to co-designing the proposals to ensure that they work more widely across the United Kingdom.
Finally, Amendment 27 would require the creation of both a list of statutory functions that can contribute to the protection and improvement of the environment and a list of functions currently exercised by EU bodies that must be retained or replicated in UK law to protect and improve the environment. SIs made under the correcting power in the Bill will be presented to Parliament for scrutiny. They will set out which UK body will perform functions, such as regulatory ones, currently performed by EU bodies. It therefore seems unnecessarily bureaucratic to require by law the creation of lists of functions.
Lord Whitty
Before the Minister moves on from the issue of future relations with the agency, can he address one point? The EU’s position is that we will cease to be a member of those agencies less than a year from today. Would the Government at least indicate that they are looking to an arrangement during a transition period where we continue to participate in those organisations, because we will be following their rules and procedures, but, according to the EU’s negotiating position, we will not be party to that? Would he please address the transition period as such?
Lord Callanan
That is not part of the amendment we are discussing, but I am happy to provide the noble Lord with that reassurance. Yes, we are discussing the exact nature of our participation in the various agencies during the implementation period.
I hope the commitments that I have made, in particular on the fact that the consultation on environmental principles will be published ahead of Third Reading, are sufficient for your Lordships to feel able not to press the amendment.
Lord Deben
I am very pleased with what my noble friend said about the environmental principles and the like, but will he confirm that, if the House feels, when those principles are published, that they are not sufficient and that we need to bring at least part of what we tabled here into the law of the land in the Bill, it will be possible for an amendment of that kind to be brought forward on Third Reading?
Lord Callanan
Yes, we are saying that we will be able to address this issue again after noble Lords have had a chance to look at the consultation on the statement of principles and the consultation on the new environmental body.
I hope my reassurances are enough to enable noble Lords not to press the amendment and that they will take the opportunity to consider the contents of the consultation before we get to Third Reading.
Baroness Brown of Cambridge
I thank the very many noble Lords who have spoken and contributed to the debate, all supporting the amendments, which again emphasises that this is an issue of deep concern across the House—one where everybody agrees that urgent action is necessary. As the Minister has now highlighted, it is one where the House is asking very strongly for assurance. I thank the Minister for his detailed response, in particular, as the noble Lord, Lord Deben, has highlighted, the commitment that we will have a policy statement and the consultation on a statutory body in time for Third Reading. I hope that they are in good time for Third Reading, so that we will have plenty of time to discuss them and consider their implications.
Indeed, we would hope to see commitments not only to the policy statement and the consultation but to a legislative timetable, so that there is no governance gap when we leave the EU. It will be good to have a further clear statement from the Prime Minister on the Government’s commitment to deliver the independent watchdog with teeth. We will look to see what is in the policy statement and the consultation on the statutory body with great interest. I am pleased that the Minister has been able to reassure us. We do not yet know what will be in these—we will get them before Third Reading—but the implication of that, he has confirmed, is that if the House still does not feel adequately assured, we can bring this issue back. On that basis, I beg leave to withdraw Amendment 27.
Baroness Hayter of Kentish Town
My Lords, it is really hard to overstate the importance of the issues raised this evening or, indeed, to understate the lack of government progress on them. It was in February of last year that the Government recognised the importance of the issues. Just so, but what action have they taken and what thought has been given to them since then? There was the welcome commitment to negotiate continued or enhanced co-operation in Munich, but what does that mean? We have heard little or nothing.
This evening we have heard from the noble Lords, Lord Paddick and Lord Wigley, and the noble Baroness, Lady Ludford, about Europol, about Eurojust from the noble Lord, Lord Wigley, about the European arrest warrant from everyone who has spoken, about European criminal records and about the Schengen Information System. These are networks that help to keep our people safe. It clearly cannot undermine any negotiations that the Government are having for us to know what they want to achieve, because we assume that they have already shared this with the EU 27. I wonder whether what they worry will undermine the negotiations is their obsession with the red line around the ECJ or their relationship with their own Back Benches. If not, why are we not hearing more?
I want to concentrate on the issue that is perhaps easiest to understand, which is the European arrest warrant, and not simply from the point of view of where the countries named by the noble Baroness, Lady Ludford, might have a difficulty with it. Are we going to recognise any arrest warrant from the other countries? We do not even know that yet. What access will our law enforcers have to the checks, records and intelligence sharing that they use not simply day by day but hour by hour? As the noble Lord, Lord Wigley, says, time is running out. We need some answers to that.
The amendment would ensure that the Government prioritised these issues over their concern with hard Brexiteers, who seem willing for the country to pay any price, even dropping out of the EAW, simply so that they can say, “Yeah, we’re shot of them”. That is a price that is too high to pay. It would put our security and justice outside an organised, functioning European system—one that has given us great confidence that we are being properly protected. This is an area where the Government need to give some leadership and come up with real proposals that can be implemented to keep all our people safe.
Lord Callanan
My Lords, I am grateful to the noble Baroness, Lady Ludford, for raising the important issues dealt with in her new clause proposed in Amendment 30, as it provides me with an opportunity to set out the Government’s position on internal security, law enforcement and criminal justice.
I want to begin by reiterating the Government’s commitment to securing the best possible outcomes for the UK in our negotiations with our European partners. As the Prime Minister made clear in her Munich speech, the UK is unconditionally committed to maintaining Europe’s security, now and after our withdrawal from the EU. The UK has been instrumental in developing many of the tools which the EU has at its disposal, and is a significant contributor. For example, the UK is in the top three of member states that contribute intelligence each day to the different databases within Europol. We want this to continue in a way that works for both the UK and for Europe so that we can respond quickly and effectively to the changing threats that we face, including from terrorism and serious and organised crime. I am grateful to the noble Baroness, Lady Ludford, for raising this important issue in Amendment 30.
The intention of this Bill is to create a snapshot of EU law as it applies in the UK immediately before exit day and then retain it within our domestic law following our departure. The UK has a long-standing tradition of ensuring that our rights and liberties are protected domestically and of fulfilling our international human rights obligations, which will continue irrespective of exit. The decision to leave the European Union does not change this. However, noble Lords will forgive me for repeating it, but the exact nature of our future relationship is a matter for negotiation. I assure noble Lords that the Government are already taking extensive action to prepare the ground for these negotiations.
The noble Baroness, Lady Kennedy of The Shaws, is not in her place, but she has tabled Amendment 66 in this group. I do not think that any noble Lords referred to this amendment, but it covers some areas that have been mentioned and so I will say a few words about that and about our objectives. Our Security, Law Enforcement and Criminal Justice partnership paper published in September last year outlined how we are seeking a relationship that provides for practical operational co-operation, including the European arrest warrant, facilitates data-driven law enforcement and allows for multilateral co-operation through EU agencies, including Europol and Eurojust. We believe that the UK and the EU should work together to design new, dynamic arrangements as part of our future partnership to continue and strengthen our close collaboration.
The Prime Minister has been clear that we are proposing a new treaty to underpin our future internal security relationships. With reference to paragraph (c) in the new clause proposed by the noble Baroness, Lady Kennedy, such a treaty will require an effective and independent means of resolving disputes that is respectful of the sovereignty of both the UK and the EU’s legal orders. The appropriate dispute resolution mechanism and the relationship between our courts will depend on the substance and context of the agreement, and so is a matter for negotiations and not for this Bill.
Let me address briefly some of the questions that the noble Baroness, Lady Ludford, asked me, about extradition from the EU using the European arrest warrant and, in particular, the implementation period. We certainly want to continue to be able to use the EAW to extradite people from the EU during the implementation period. The relevant provisions on this in the withdrawal agreement were not agreed and are hence marked as yellow, and discussions are continuing on this as we speak. However, we believe that it is in the interests of both the UK and EU member states that current capabilities are preserved during the implementation period, and we continue to make that case.
Baroness Hayter of Kentish Town
The Minister has answered only one part of the question—whether it would be possible that we would be able to extradite from other countries. I asked whether we were willing also to respect an arrest warrant from another country and to exercise that here.
Lord Callanan
It is certainly our intention but, as I have said, these are bilateral relationships and the discussions are continuing. That is one part of the withdrawal agreement that was not quite finalised and so, literally, discussions are continuing on it.
The noble Baroness, Lady Ludford, also asked me about databases and the use of EU data on UK databases and vice versa. This is also a matter for negotiations. Our aim is to ensure that we and our EU partners continue to share and use personal data where there are clear benefits to public safety, subject of course to the appropriate safeguards.
For all of those reasons, and given the Government’s clear intentions to continue and strengthen our close collaboration on security, law enforcement and criminal justice after we leave, and given that the new clauses exceed the purpose of this Bill, I invite the noble Baroness to withdraw her amendment. For the sake of clarity, I should say that the Government will not reflect further on this amendment and so, if the noble Baroness wishes, she should take the opportunity to test the opinion of the House this evening.
Baroness Ludford
I am quite cross, really. With all respect to the Minister, that is a disrespectful response. Twenty-one months after the referendum, there was not even as much detail in the Minister’s reply as there was in the Prime Minister’s Munich speech. For instance, the Minister said that a new treaty will require respect for legal sovereignty. As I mentioned to him, the Prime Minister said:
“when participating in EU agencies the UK will respect the remit of the European Court of Justice”.
What does that mean? The Minister has enlightened me not a jot on that, nor on the follow-up phrase about,
“our unique status as a third country with our own sovereign legal order”,
which was the only one he talked about.
It is farcical that the Prime Minister can make a speech containing more detail than the Minister is prepared to give in response to an amendment in this House. We are being treated as of no account whatever. The way in which Ministers are responding on this is disrespectful. It is obvious that there are major challenges in getting a UK-EU security treaty. Many commentators are writing about it, with various opinions and insights, but the Government are not among them, at least when it comes to telling us in Parliament. Even though we are the unelected House—I am not aware that they are telling the elected House in any more detail either—it seems poor that this is what we have become and have been reduced to when we seek knowledge about how Parliament will take back control of our future relationship with the EU post Brexit.
We will have to reflect on another way in which to take this issue forward. I hope the Minister will understand that his reply was not worth the paper it was written on. That said, I beg leave to withdraw the amendment.
Lord Callanan
I thank noble Lords for their time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. There really is no difference between us in our commitments to these important issues. Amendment 30A, in the name of the noble and learned Lord, Lord Wallace of Tankerness, follows on from the debate we had in Committee in that it seeks to reflect in statute the political commitment that the Government have already made in this area—that is, that we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU.
I must, however, be clear with the noble and learned Lord that we have three concerns about his suggested approach. First, there is the issue of language, context and potential for conflicting rights. Put simply, the language of a political commitment does not translate to the statute book. Therefore, let me say to my good noble friend Lord Cashman that while our commitment to existing equality protections works perfectly well politically—we are committed to them here and in the wider world outside this place—it must be noted that terms such as “protection” and “diminish” do not have a sufficiently clear and precise meaning for the purposes of statute. As a consequence, the amendment runs a very real risk of creating tensions for real people, with real interests that may be difficult to resolve between existing and potential future rights that we may wish to legislate for.
To give an example, noble Lords may be familiar with the experiences on buses of some passengers who use wheelchairs, and the difficulty that they have sometimes had in accessing the space theoretically available to them when it has been taken by people, often parents with young children in pushchairs. The question arises as to whose rights take priority, especially as, arguably, both parties are covered by “protected characteristics” provided for in the Equality Act 2010. This particular example of potentially conflicting rights is being resolved, following a court judgment that passengers who use wheelchairs have priority. However, I trust this helps illustrate the risk of future developments in equality law being, in effect, struck down in the courts because, while they might benefit certain groups, these benefits might come at the expense of rights in retained EU law secured under this Bill. As has been noted, the Equality Act 2010 is lengthy, detailed and specific in order to avoid questions of competing or conflicting rights. Setting it in stone against any future equality issues we or future Governments may wish to provide for runs fundamentally against the grain of the Act and our developing and dynamic approach to equality rights in this country.
Our second concern is closely related in that we fear this new clause would create considerable legal uncertainty. Indeed, the noble and learned Lord has recognised this by including proposed subsections (4) and (7) which describe what a court may do when faced with an issue of the compatibility or otherwise of new provisions and existing equality rights. I hope he will understand when I say that, especially in the context of our exit from the EU, we think it is vital to keep to an absolute minimum any legal uncertainties that may arise for the good of businesses and individuals, so a new clause that seems positively to embrace such uncertainty is not an attractive prospect. It is not at all clear what businesses or individuals are supposed to make of any rights and obligations that might apply to them pending the emergence of the case law that the new clause anticipates.
Finally, there is the relationship between the proposed new clause and the Human Rights Act 1998, the architecture of which reflects the existence of the European convention. The noble and learned Lord’s text uses key concepts from the HRA, notably declarations of incompatibility and their consequences, and proposed subsections (8) and (9) directly cross-refer to sections of the HRA. This simply is not appropriate. Indeed, at the risk of echoing my earlier point, we believe these linkages would lead to uncertainty and confusion. There is, for example, no explanation of what the effect of declaration of incompatibility would be in this context. Would the primary legislation continue to have effect or not? There is clearly potential for gaps and contradictions to develop between challenges and actions based on the new clause as opposed to the HRA and its existing reference to the prohibition of discrimination under Article 14 of the European Convention on Human Rights.
I have already alluded to our clear public commitment to maintaining existing equality protections, and I am very happy to repeat that commitment now. While I understand the noble and learned Lord’s best intentions in this area, I must gently suggest to him that the interests of equality rights on our statute book are not well served by his proposed new clause and I hope that he will feel able to withdraw it. For the avoidance of any doubt, the Government will not be reflecting further on this matter, so if he wishes to do so, he should test the opinion of the House this evening.
Lord Wallace of Tankerness
The Minister should not tempt me. I am grateful to him for his reply, which was probably a bit more substantive than ministerial replies to the previous two debates, although it was, equally predictably, negative.
I do not think that the Minister’s arguments bear too much scrutiny. He complained about the language used in my amendment and said that it is difficult to put a political commitment on to a statutory basis. He was challenged by the noble and learned Lord, Lord Goldsmith. If the wording here is not right, what are the Government proposing to do to give underpinning? I do not think that at any point in reply to this debate did the Minister indicate that there is no need for a proper underpinning of the equality rights we have. Indeed, given the Government’s commitment to maintaining them, one assumes that the Government believe that they should continue and be underpinned. If the wording proposed is not right, there is a deafening silence from the Government’s side about what words they would use. The Minister raised the declaration of incompatibility and whether that meant striking down. I think I made it clear, as did the noble Lord, Lord Low of Dalston, that we do not mean striking down. What we seek in this amendment is to make it consistent with the principle of parliamentary sovereignty after we leave the European Union.
It is said that the clause conflicts with the Human Rights Act. I confess that my party and I have argued many times for a written constitution for the United Kingdom, but we are always told that one of the benefits of the unwritten constitution is its flexibility. So we introduced into our constitution a Human Rights Act with some very good provisions; the noble and learned Lord, Lord Goldsmith, indicated some of the focus of attention and consideration that that Act places upon Ministers when they consider compatibility. If we have that, what is wrong? What is the constitutional fault in using that good practice to extend into another area where we are talking about something fundamental?
That is the concluding point because this is a fundamental question. The noble Baroness, Lady Lister, and the noble Lord, Lord Cashman, reflected on what kind of country we want to be. The Government set out in their White Paper last March that they want to respect and cherish equality rights. There is common ground on that. What we have not seen from the Government is a way in which they can ensure that that is underpinned as we go forward, so that we can ensure that that characteristic of what kind of country we want to be can be maintained without threat. I find it very regrettable but the night is a bit too late to test the opinion of the House, so I beg leave to withdraw the amendment.