European Union (Withdrawal) Bill

Baroness McIntosh of Pickering Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

8: After Clause 2, insert the following new Clause—
“Status of EU directives adopted, but not implemented, before exit day
(1) Unless already part of retained EU law under any other provision of this Act, all EU directives adopted but not implemented before exit day, including those listed in subsection (4), remain binding in domestic law, as if the United Kingdom had not left the EU.(2) In implementing any EU directive under subsection (1) after exit day, a Minister of the Crown may use any power set out in the European Communities Act 1972 as if that Act had not been repealed.(3) If, through implementing a directive under subsection (2), a situation arises which would be considered a deficiency had it arisen in retained EU law, a Minister of the Crown may use any of the powers set out in section 7 of this Act to remedy that situation as if that directive had been implemented before exit day.(4) EU directives adopted, but not implemented, before exit day, include—(a) Recognition of Professional Qualifications Directive (2017/2397);(b) Fraud (criminal law) Directive (2017/1371);(c) Accessibility of websites and mobile applications Directive (2017/2102);(d) Legal aid (suspects, accused persons and those under European Arrest Warrant proceedings) Directive (2016/1919);(e) Rail safety Directive (2016/798);(f) Rail interoperability Directive (2016/797);(g) Safeguards for child suspects in criminal proceedings Directive (2016/800);(h) Trade marks Directive (2015/2436);(i) Financial instruments Directive (2014/65);(j) Cost-effective emission reductions and low-carbon investments Directive (2018/410);(k) Environmental assessments (genetically modified organisms) Directive (2018/350);(l) Maritime workers Directive (2018/131);(m) VAT Directive (2017/2455);(n) Health and safety (exposure to carcinogens or mutagens at work) Directive (2017/2398);(o) Passenger ships (safety and standards) Directive (2017/2108);(p) Passenger ships (passenger registration) Directive (2017/2109);(q) Passenger ships (inspections) Directive (2017/2110);(r) Hazardous substances (electronic equipment) Directive (2017/2102);(s) Tax dispute (resolution mechanisms) Directive (2017/1852);(t) Hybrid mismatches (third countries) Directive (2017/952);(u) Weapons (control and acquisition) Directive (2017/853);(v) Shareholder engagement Directive (2017/828);(w) Maritime workers (International Labour Organisation) Directive (2017/159);(x) Tax Avoidance Directive (2016/1164);(y) Mayotte (status) Directive (2013/64).”

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, in moving Amendment 8, which stands in my name and those of the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Wigley, and Amendment 32, which is consequential to this amendment, I wish to press the Minister, my noble and learned friend Lord Keen, who replied to the debate last time. My starting point is that, despite urging my noble and learned friend and following his response to the debate that we had in Committee and subsequently in the cross-party meeting held between Committee and Report, we have seen no movement on this. Since Committee I have revised the amendment to include a list of those 23 directives that we know from a House of Commons briefing paper will fall into one particular category: directives adopted but not implemented before exit day. For clarity, I have attached that list.

However, it is important to point out that this list is not comprehensive. There are a number of other directives of which I am aware, such as the environmental directives relating to water. As has been brought to my attention by the City of London Corporation just today, there are further examples such as the second payment services directive 2015/2366, which will be implemented before exit day, but the regulatory technical standards underpinning its operation will not.

A second category of directives falls within the remit of this amendment, which are broadly packages of directives such as, for example, those referred to in Committee by the noble Baroness, Lady Young of Old Scone, to whom I am very grateful. This has been brought to our attention in a briefing from the Law Society of England. It is particularly concerned that there is no legal basis or mechanism as yet for Ministers to bring any measures into UK domestic law that are part of a package of EU legislation into which the UK will have had input as an EU member state and to which we agree. It is its recommendation that Ministers should be given powers to bring certain types of EU legislation into domestic law if it forms part of a package as this will reduce the impact on businesses and help them to prepare better.

There is then a third category that I believe falls into Amendment 9, which we will consider after this little group. Within that category there are regulations that fall to come into effect after exit day, but the main regulation will have been adopted before that. Again, the City of London gives the example of the prospectus EU regulation 2017/1129. The regulation itself, which is directly applicable, will have been in force since 20 July 2017, but the majority of the regulation will not apply until 21 July 2019, which will mean we will no longer be in regulatory alignment with the European Union after that date.

To sum up the little debate we had on this in Committee, my noble and learned friend Lord Keen, who I am delighted to see in his place, was rather brutal and frank. He said that there might be directives that have been adopted that have not been subject to implementation by the exit date because the transition period extended beyond the exit date. He went on to say:

“There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside”.


The central point is that,

“directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after”,—[Official Report, 28/2/18; col. 689.]

that date.

My purpose in bringing forward the amendment is simply to request that my noble and learned friend brings forward a legal basis today. When we had our meeting, for which we are extremely grateful, he said that it would be open to the Government at a future date to decide that a directive that fell into this category—adopted but not implemented—could be transposed by primary legislation and become part of retained EU law in that way. The question I put to my noble and learned friend is simple. This is very odd. Either it would lead to at least 23 pieces of primary legislation— 23 separate Bills—or one Bill giving individual effect to all the separate pieces of legislation, not just the 23, but the others to which I have referred, in which case it would extend Henry VIII powers beyond those we have already identified. My further question to the Minister would therefore be: what precedent is there for this, and where would the parliamentary scrutiny fall?

In speaking to these amendments, I hope for further clarification, and a commitment and an undertaking from my noble and learned friend to give legal certainty about these two categories of legislation where directives have been adopted but not implemented before exit day.

--- Later in debate ---

I cannot hold out false hope that we will reflect further on this issue between now and Third Reading, so if the noble Baroness wishes to test the opinion of the House, she should do so now.

[Baroness McIntosh of Pickering]

That is a very tempting offer. I thank the noble Baroness, Lady Smith of Newnham, and the noble Lord, Lord Wigley, for their contributions. I am sure that my noble and learned friend meant no disrespect to the House and those of us who have spoken to and supported this amendment by being late and, perhaps because of his lateness, being unable to address many of the arguments that were put. I am disappointed in particular that he did not respond to my question whether he intends to have 23 or more Bills if the directives are to be transposed into EU law, as he undertook to do at a private meeting—obviously it was a private meeting; it was not a matter of record—that we had in the Chamber.

To my noble and learned friend’s point that the UK has opted out of two of the directives, as he has said on two occasions, it is quite within the wit of the Government to opt in at a later date, so that is not a compelling argument. I welcome his placing on the record that the category of regulations that we are considering may fall in the transition period. It is my clear understanding—and, I think, the understanding of the House—that the European Union has agreed to a transition period. The Government perpetuate the myth that we are going to embark on an implementation period. It would be helpful to the House to be given clarification at some point as to what the different understandings of a transition period and an implementation period may be. It is my firm intention not to let this matter go, because it does fall within the scope of later groups of amendments, including those to be considered, as my noble and learned friend said, under Clause 7. I also understand that he has given a very clear commitment to the proposer of Amendment 9. Against that background, I thank those who supported this amendment and spoke to it and at this stage I beg leave to withdraw the amendment.

Amendment 8 withdrawn.