Brexit: Withdrawal Agreement and Political Declaration

Baroness Young of Old Scone Excerpts

Monday 14th January 2019 Lords Chamber

[Baroness Young of Old Scone (Lab)]

My Lords, I want to make three points. First, the reality is that the Prime Minister’s deal is dead. The majority of MPs and probably the majority of your Lordships’ House, from all sides, simply do not support it. In the country, both leavers and remainers are quixotically united in rejecting it. The PM’s deal is definitely dead.

Secondly, there is no real mandate for leaving the European Union: 17 million people voted to leave, 16 million people voted to remain and 13 million people did not vote at all. So the “expressed will of the people”, as the Brexiteers like to call the outcome of the referendum, was the expressed will of only 37% of the electorate, and the polls tell us that these figures are shifting further in the direction of remain, particularly among young people eligible to vote for the first time—the very people who will inherit this mess.

It is not just a numbers game. All the political parties, with the exception of the Liberal Democrats, are radically split on the issue. Today in the House, even the Bishops have confessed—if that is what Bishops are allowed to do—that they are split. The normal machinery of politics simply does not work where Brexit is concerned. In any other walk of life, no sensible leader would attempt something as complex, heroic and contentious as unravelling 50 years of close partnership with no real mandate, no overwhelming support in the country and with their party split and unable to offer support. It simply would not happen.

Thirdly, if the PM’s deal has no support, no deal is even more catastrophic and must be absolutely ruled out. It would be equivalent to the closing moments of the road movie “Thelma & Louise”—one of my favourite films—when the two main characters, cornered by events and the law, drive spectacularly and with huge élan off a cliff. Driving off a cliff never has a good outcome, and let me give your Lordships just one example of the risks of a no-deal Brexit which has not been highlighted completely so far.

Brexit is a pivotal challenge for the environment. Some 80% of our current environment law stems from the EU and a no-deal Brexit would sweep away the current effective systems of enforcement of environmental law, and the existing rights of the public to environmental information, to public participation and to access to justice. With a no-deal Brexit there is a real risk that, as part of a desperate scramble to sign trade deals, the UK would be pressurised into a post-Brexit bonfire of environmental standards. As my noble friend Lord Whitty outlined, the Government have promised a whole framework of primary and secondary legislation for the environment, but none of it can come into place quickly, if at all, under a no-deal Brexit. This is simply one area that I have knowledge of where black holes will open up under no deal. We must avoid a no-deal Brexit at all costs.

I believe that your Lordships’ House must be the voice of sanity. We should vote vigorously against the Prime Minister’s deal and stop a no-deal Brexit. We must not be like Thelma and Louise, heading off a cliff, intoning, “It’s the will of the people”. I would go further than our Front Bench and ask the other place to revoke the Article 50 notification. Some say that resiling from a Brexit that looks highly unpalatable under closer examination, and which has in reality proven politically unachievable, would destroy faith in the political system. But there is no faith in the political system. Many of those who voted to leave did so because they felt politics had not delivered social and economic results for them, and because they had already lost faith in the political system. The time has come for men and women of good will across the parties to abandon this Brexit, which will impact particularly on those who are poorer and less able to cope, and focus on forging a national engagement and agreement to address the real issues of the day: future prosperity, economic and social inequalities, and the safeguarding of peace.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

Not necessarily in the context of retained EU law, which comes over with that principle of supremacy standing behind it. I will come on to deal with that in more detail. I understand that, as the noble Lord indicated, his amendments draw on the recommendations made in the Constitution Committee report on the Bill—although I was interested to note that Amendment 33 appears to go further than the recommendations put forward by the committee, in that it extends the status of primary legislation to all retained EU law, rather than just to law being preserved by Clauses 3 and 4 of the Bill. So there is that difference between Amendment 33 and the recommendations of the Constitution Committee.

I understand entirely the concerns here and the attraction that these amendments have as a result. It is only right, however, that we should examine fully the consequences of dealing with status in a one-size-fits-all way.

[Baroness Young of Old Scone (Lab)]

Before the Minister moves on to the consequences, perhaps I might draw his attention to the status of environmental law currently drawn from the European Union. Of course, a considerable proportion of the anticipated changes that will be required are in environmental law, because so much of what we draw from Europe is environmental law. At the moment, the status of environmental law drawn from Europe has been pretty random, to be frank, and not at all reflective of the importance of the legislation. It has been random, whether it is drawn from a regulation which would be picked up by the clauses that the Minister mentioned or from a directive which would not be picked up in that way. But it did not really matter that it was rather random in its status, because the framework provided by the ECA was there, and therefore none of the legislation could be meddled with randomly by the Executive. Of course, once the safeguard provided by the ECA has gone, the status of existing environmental law becomes rather strange. It sticks out like a sore thumb, in that some of it that one would think was sufficiently important to be considered eligible, as it were, for primary legislation, has not got that current status, while other bits of law that are pretty functional and practical have a much lower status. So I urge the Minister to think about just how complicated the process would be if we did not simply adopt a single status for all that law.

[Lord Keen of Elie]

First, with respect to the noble Baroness, I do not accept that the way in which environmental law has been received and enforced in our domestic legislation has been random. We differ at the outset to that extent. Of course, various propositions have been put forward, one of which is to give the status of primary legislation to all retained EU law—but that would raise difficulties that I will come on to address. The categorisation below that can be carried out: indeed, the noble Baroness tried to set out for Amendment 32A a hierarchy that could be employed in that context. But I do not consider that environmental law stands out in the way that the noble Baroness suggests.

Our concern is that, as I mentioned, a one-size-fits-all approach will not really work. Again, I quote from the Bingham Centre’s report, which stated:

“We consider that the Rule of Law objectives of legal continuity and certainty are better served by the approach taken by the Government in the Bill. The principle of supremacy is well understood and its future role is very limited, being confined to the relationship between retained EU law and pre-exit UK law. Treating all retained EU law as primary legislation enacted on exit day, on the other hand, will increase legal uncertainty because it changes the settled approach and leaves unclear whether the interpretive obligation, to interpret pre-exit UK law so as to be compatible with retained EU law, continues to apply”.


EU law that is being converted into domestic legislation under this clause covers both a vast range of different policy areas and different types of EU law, from regulations and directives applying to agriculture and farming to detailed and technical pieces of tertiary legislation, such as the list of contents for a dye or chemical. At the end of the day, treating all of that as primary legislation would present, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, a quite enormous task for Parliament if it is going to legislate to amend any of that retained EU law. How many Acts of Parliament would we have to contemplate putting through this House to wrestle with that demanding position? It really would be formidable. Because this legislation will come on to our domestic statute book in a unique way, it will not already have been scrutinised and approved by this Parliament—so we would be bringing in this enormous body of law and treating it as primary legislation when nobody in this Parliament had actually examined it.

The breadth of this body of law, in the case of EU law being converted, is unique in its nature, which is why the Government have deliberately chosen to tread rather carefully and not simply assign a single status to that retained law in domestic legislation. While assigning a single status for all purposes to all retained EU law may be theoretically possible, it would have the most difficult consequences and might lead ultimately to a situation in which we had to extend the use of Henry VIII powers beyond any reasonable limit normally contemplated in the context of provisions of this kind.

Beyond that practical consideration, there is a more fundamental concern about the constitutional appropriateness of what has been proposed. Domestic primary legislation is less vulnerable to subsequent amendment and is less vulnerable to challenge in the courts for a very good reason—because, as I said, it has undergone scrutiny by both Houses of Parliament, which means that there can be no doubt about Parliament’s intentions so far as that primary legislation is concerned. That would not apply to retained EU law.

While we are spending considerable time scrutinising this Bill, we are not able to scrutinise the law it is converting. Some of that law is itself the EU’s own subsidiary legislation, which has not been subject to comparable scrutiny anywhere. The noble Baroness observed on an earlier occasion that the European Parliament had had the opportunity to scrutinise much of this. It has had the opportunity to scrutinise some of it, but scant scrutiny—if any—of the subsidiary legislation has actually occurred in the European Parliament. By contrast, our proposed approach has been to deal with the status of converted law for certain specified purposes, such as that alluded to by the noble Lord, Lord Pannick: that is, paragraph 19 of Schedule 8 in the context of the Human Rights Act and rights arising from there.

Of course I understand the concerns put forward by the Constitution Committee and noble Lords about the consequences of the case-by-case approach that we are taking. I do not dismiss them lightly and I do not say that the Bill is a perfect solution to the issue that we have to address. As I indicated on day three of Committee, there is some scope for considering how we can take this forward. Reference has already been made to the work of Professor Paul Craig and the alternative model of categorisation that he proposed in his article of 26 February. That is something that we are looking at—albeit, as the noble Lord, Lord Adonis, anticipated, that it might involve a considerable amount of work. But if that can be an appropriate and effective categorisation, rather like that of the noble Baroness, it is something that we are willing to look at.

Again, I ask the Committee not to dismiss lightly the potential ramifications of treating all this law as having the status of primary legislation just to exclude the concept of supremacy from the operation of Clause 5. That would raise formidable problems for us and we do not see it as an effective way forward for the Bill. But, as I indicated previously, we are looking at the mechanisms employed here, and a mechanism that avoids actually applying the doctrine of supremacy may find greater traction as a way forward if we can come up with a suitable categorisation for retained EU law, rather than a blanket categorisation of primary legislation. I invite the noble Lord to withdraw his amendment.

European Union (Withdrawal) Bill

Baroness Young of Old Scone Excerpts

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

[Lord Adonis]

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

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

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


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

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


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

[Baroness Young of Old Scone (Lab)]

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

[Lord Mackay of Clashfern]

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

--- Later in debate ---

[Baroness Young of Old Scone]

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

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

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

[Lord Deben (Con)]

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

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

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

--- Later in debate ---

[Lord Mackay of Clashfern]

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

[Baroness Young of Old Scone]

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

[Lord Mackay of Clashfern]

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

Civil Procedure (Amendment) Rules 2017

Baroness Young of Old Scone Excerpts

Wednesday 13th September 2017 Lords Chamber

[Lord Brown of Eaton-under-Heywood]

In so far as the sub judice rule would apply to a debate of this character, I respectfully do not for a moment accept that I am breaching it. I am suggesting that it is highly relevant to the present Motion to Regret, a Motion which, as the noble Lord said, was initially tabled in March and, therefore, before those proceedings. In so far as, for example, it is now said that we are in flagrant breach of the rule of law and all the rest of it, those issues fall to be decided properly in the context of full argument in those proceedings and not to be well-nigh pre-empted by a Motion to Regret today. For my part, I would not support a Motion to Regret without the benefit of the High Court’s judgment on the legal issues arising.

[Baroness Young of Old Scone (Lab)]

My Lords, I wonder if I might address the points made by the noble and learned Lord, Lord Brown, not from the point of view of his confidence in flexibility and the wisdom of judges but from the point of view of the people who regularly have to consider whether they are willing to put forward their personal assets and privacy and, indeed, of those organisations representing the public which are placed in that position. I should declare an interest: I am president, vice-president or chairman of practically half the conservation and environmental organisations that are involved in these cases.

I very much welcome the Motion to Regret of the noble Lord, Lord Marks, and I really do regret the way that the Ministry of Justice has barrelled on to implement the removal of the cap on claimants’ costs in environmental cases, in spite of the criticism by virtually all consultees and the views of the Secondary Legislation Scrutiny Committee, which I thought issued its opinion in a rather more trenchant and stinging way than I have seen it operate in the past, which was interesting.

As a country we have been criticised for some considerable time by the United Nations and others for our lack of compliance with the Aarhus convention. I was interested to note that yesterday the noble and learned Lord, Lord Keen, in briefing Peers on the Brexit Bill, said that although we will lose recourse to the ECJ in relation to environmental issues, our responsibilities under the Aarhus convention will remain. Alas, our responsibilities under that convention are not being delivered on a regular basis and we continue to be criticised internationally. Therefore, I regret the MoJ’s move as it takes us even further away from compliance.

I have personal experience of being involved with charities that have initiated judicial review in these circumstances. These charities are representatives of communities. The trustees of these bodies take very seriously their responsibility to represent communities on these important issues. However, they are now incredibly wary of committing to challenge the decisions of public bodies through judicial review as they can have no assurance—other than the sorts of assurances which the noble and learned Lord, Lord Brown, attempted to give on the judiciary—that costs will not escalate and that they will have no influence over that as the cap can be changed at any stage in the process.

For individuals or unincorporated public bodies contemplating initiating a judicial review against a public body, the unpredictability and possible scale of the costs, the need to demonstrate the ability to pay and the risk to their homes and other assets are, indeed, chilling. Therefore, we have a situation in which individuals are being placed in a position where they have to think long and hard about taking such a case, as do responsible, publicly focused charities.

We do not know how many cases fail to be taken and how many people are deterred by these new arrangements as those decisions are made by individuals, families and communities and, in the case of charities, made behind closed doors. As an ex-chief executive of several charities, I suspect that charities would have to have pretty brave boards of trustees to undertake what is likely to be expensive judicial review under the current circumstances. We are very much seeing communities being priced out of environmental justice. I therefore urge the Minister to reconsider this decision to remove the cap and I urge noble Lords to support a reversal of this measure.

[Lord Cavendish of Furness (Con)]

Before the noble Baroness sits down, and for the sake of clarity, what exactly did she mean by charities being communities? What is the status of that?

[Baroness Young of Old Scone]

My Lords, I am delighted to explain that. In many cases our charities are the voice of the public and constitute the way in which the public organise themselves to have a voice in environmental challenges. As a nation we are blessed with a rich range of charities in the environmental field, which have operated for many years in hugely responsible ways to hold government to account on behalf of the communities in which they operate. I have much experience on both sides of this equation, having taken cases on behalf of charities such as the RSPB and having been on the receiving end of cases when I was chief executive of the Environment Agency. I value the role of charities, as do local communities.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I congratulate the noble Lord, Lord Marks, on bringing this regret Motion. I am always conflicted by regret Motions, because they are extremely weak, which of course infuriates somebody like me. However, at the same time they do two things. First, they send a message to the Government—they have to sit and listen and, perhaps, do something good for a change; but secondly, they allow people like me to get up and rant, and I would like to rant for a minute, because I am furious about this. I cannot see how any Government can reduce justice for all, and that is the principle at stake here. The principle is that justice is for everybody, however rich or poor. The noble Lord, Lord Marks, raised a case where a political party wanted to bring an environmental case and did not have the money for it. This will happen more and more.

We can look at some of the things that the Government are doing at the moment—for example, HS2, which is the most incredibly wasteful, stupid, unnecessary piece of infrastructure they could possibly have devised. That will raise all sorts of issues. It is already steaming through sites of scientific interest, and there will be huge environmental problems. By removing the cap, the Government are reducing the hassle they will experience in pushing this through. I therefore urge the Lords to vote for this Motion and show the Government that what they are doing is completely wrong. This Chamber has a real opportunity to make life better for people—and of course, people who are on a low income, and charity and community groups who do not have the money, will suffer because of this.