European Union (Withdrawal) Bill

Baroness Smith of Newnham Excerpts

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

[Lord Deben]

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

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

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

[Baroness Smith of Newnham (LD)]

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

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

[Lord Mackay of Clashfern]

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

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

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

--- Later in debate ---

[Lord True (Con)]

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

[Baroness Smith of Newnham]

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

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


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

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

[The Earl of Listowel (CB)]

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

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