European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

Debate on whether Schedule 5 should be agreed.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful for this opportunity to probe the contents of Schedule 5 and debate whether it should be agreed. We have been told throughout the Committee proceedings that this is a technical Bill making arrangements to transpose existing EU law instruments such as regulations, decisions and Court of Justice case law which already exist on exit day into UK law. The two debates we have had today demonstrate the point that I would like to make: we have never embarked on an exercise of this scale and I do not think the Government are aware as yet what the scale of the exercise is.

I begin with one quick question. Paragraph 1(1) of Schedule 5 says that the Queen’s printer “must” make arrangements for the publication of each relevant instrument and so on. Yet under sub-paragraphs (3) and (4) of paragraph 1 we are told that the Queen’s printer “may” make arrangements. I wonder why there is a difference there. Under sub-paragraphs (3) and (4), who will exercise that discretion? For the purposes of this Bill, what are the instruments, how many are they and where are they?

With a number of other noble Lords, I was fortunate to have a meeting with my noble and learned friend Lord Keen, where I asked where these instruments could be found. I hope the Minister will be able to confirm that. It is rather surprising to learn that there is no central depository for such instruments in this country at this time. We are referred to websites to see what the range of instruments is. The first website is that of the Queen’s printer—the National Archives—and we see a blank screen. We have first to search through all the legislation; we have to have the title of the legislation, the year in which it was agreed and its number. We also have to know the type of the legislation and go through various categories. The only specific reference to EU legislation that I could see in the short research that I did was in respect of UK statutory instruments.

The second website to which we are referred is EUR-Lex, which is a widely used European legal search engine and the EU’s legal database. There again, you are faced with a screen in which you need to type in the document number, the year it was adopted, the type of instrument—regulation, directive, decision, European court case—and the body which issued it. That is what you have to enter before you can do any further search.

On the scale of the exercise, it is very clear from the Explanatory Notes that we do not know how many instruments there are—our preceding debates today have magnified that. We are told in the Explanatory Notes that, while there is no single figure for how much EU law already forms part of domestic law and how much will therefore be converted by this Bill, according to EUR-Lex, the EU’s legal database, there are currently more than 12,000 regulations which it defines as directly effective EU laws and more than 6,000 EU directives which will have been transposed and enforced across the EU. Additional research from the House of Commons Library indicates that in addition to that—I assume that it is in addition—around 7,900 statutory instruments have been made in the UK which have been implemented as EU legislation. There are a further 1,302 primary UK Acts of Parliament between 1980 and 2009, excluding those which have later been repealed, with 186 Acts in addition exhibiting a degree of EU influence, which means that they are UK law emanating from EU law.

If I was back in practice, as the noble Lord, Lord Pannick, and a number of other noble and noble and learned Lords are, and I wished to advise a client for the purposes of this Bill which instrument or decision is to be transposed, my understanding is that we simply would not know. Tomorrow, it will be only one year until we formally leave the European Union. I am sure that my noble friend the Minister will agree that this is a massive exercise. I want to put two simple questions to her. First, are we right to conclude that there is no centrally depository or archive for such instruments at this stage in this country, but that the information is held in the archives in Brussels? Secondly, can the Government put a figure on the number of decisions and other such instruments to be transposed for the purposes of this Bill into UK law as part of this exercise?

--- Later in debate ---

[Baroness Goldie]

My Lords, if we do not get through this debate, I will not be visiting anywhere. I must thank a group of your Lordships for their fascinating contributions, some of which have eliminated my need to write to anyone about anything. Still, I shall look at Hansard.

In the view of the Government, the mixture of defined duties and specific powers provided for in part 1 of Schedule 5 strikes the right balance. I say to my noble friend Lady McIntosh that it is comprehensive, flexible and accountable.

Part 2 of Schedule 5 ensures that after exit day questions about the meaning or effect of EU law can continue to be treated as questions of law and so can be determined by our courts when determining that such a question is necessary in order to interpret retained EU law. As I said earlier, it also contains a power, subject to the affirmative procedure, to make provision about judicial notice and the admissibility of evidence of certain matters.

I hope that my remarks have provided sufficient explanation of the rationale behind, and indeed the importance of, Clause 13 and Schedule 5 and why it is imperative that that clause and schedule stand part of the Bill.

[Baroness McIntosh of Pickering]

My Lords, this has been an entertaining and illuminating debate. I am grateful to those who have pressed the Minister for answers.

I do not quite understand why there is a discretion in sub-paragraphs (3) and (4) of paragraph 1 of Schedule 5 for the Queen’s printer not to publish the instruments in question, because it would be difficult to find out what they are if they are not published. I look forward to hearing from the Minister how many there were in the last year—if we ever get a final answer. Could she also respond on the issue of why there is no discretion under sub-paragraph (1) when there is a discretion under sub-paragraphs (3) and (4)?

The Minister has confirmed the scale of the exercise that we will all be involved in. It was not my intention that Schedule 5 should not be part of the Bill; it was purely my intention to explore the fact that there is no archive and we do not know how many instruments of this type there will be.

Schedule 5 agreed.