European Union (Withdrawal Agreement) Bill

Duke of Montrose Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

[The Duke of Montrose (Con)]

My Lords, I try to follow all the arguments that are put forward about devolution and where it all stands. The puzzle to me is that the logic of the people supporting this amendment seems to be that the Parliament here at Westminster is not entirely sovereign. That may be an issue that we wish to take up at some point in the future, but it is not something that we should be dealing with in the withdrawal Bill. I am not a lawyer, but the way the amendment is phrased seems to make justiciable anything that comes up between the devolved Administrations and Westminster. At this point, I think I would oppose the amendment on the ground that it would detract from the sovereignty of Westminster without all the implications having been thought through.

European Union (Withdrawal Agreement) Bill

Duke of Montrose Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[The Duke of Montrose (Con)]

My Lords, to follow on from that speech, I have to say, much to my surprise, that I regard myself as being accused of being thoroughly responsible for the Bill.

It has been obvious to anybody listening to this debate that the process required by Brexit is liable to be highly disruptive to the entity that is the United Kingdom, and this is not just a question of an Irish border or troubles with devolved Administrations, as several noble Lords mentioned. In the past 40 years, we have had legislation coming from Brussels which ensured that there was a large amount of similarity and coherence in how these laws were interpreted in the various parts of the United Kingdom. The question that arises now is: will we require to maintain that level of coherence in order to operate as a single national economy? This will be particularly true for food, farming, fishing and rural affairs in Scotland and all the devolved Administrations. This is an area where I have always had a major interest, both because I have a farm and because I have taken an interest in the sheep industry, as stated in the register. I thank the Law Society of Scotland for briefing me on the difficulties that appear from the Scottish perspective.

Inevitably, this has been occupying a great deal of time of the Joint Ministerial Council, where no doubt worthy people have been working away—but to most of us it is a shadowy body which, if some recently published minutes of its meetings which I have just seen are anything to go by, it is quite happy to remain. However, it is good to note that in October 2017, it recognised that there would be a need for common frameworks to be in place which should recognise all devolution settlements. Later on that year, the Cabinet Office published a list of 110 points where EU law intersects with devolved matters. Perhaps fortunately, for everyone’s relief, it has now published a revised analysis saying that the Cabinet Office identifies that there are only 21 policy areas affected where more detailed discussion around whether legislative common framework arrangements might be needed. For agriculture, regulation currently involves at least 12 separate pieces of EU legislation, so a number of frameworks may be required there. Can the Minister tell the House how many of these framework proposals are now accepted by the devolved Administrations as necessary and what further discussions are planned?

The Scottish Parliament is very concerned about this area. It is currently considering the Agriculture (Retained EU Law and Data) (Scotland) Bill, through which the Scottish Government seek powers both to simplify and improve CAP legislation and to trigger market intervention measures. It also includes regulations to facilitate the continuity of agricultural payments following the UK’s withdrawal from the EU and to make new provisions about marketing standards and the classification of carcasses. In this, they appear to have realised, almost before the Government woke up to it, that on 31 January the withdrawal Bill will disapply legislation enabling the Government to make the payments as required under the CAP, in particular the 2020 single farm payment.

However, the Government have woken up to this situation. Perhaps noble Lords noticed last Thursday the First Reading in the other place of the Direct Payments to Farmers (Legislative Continuity) Bill on exactly that subject. I do not know how many of the single farm payments to farmers for 2019 are still outstanding and whether they will be affected on 31 January. Do the Government intend to have this piece of legislation in force before then? If not, what action do they propose, or will we have a hiatus where all moneys will be stopped?

European Union (Withdrawal) Bill

Duke of Montrose Excerpts

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

[Lord Beith (LD)]

My Lords, Clause 4 contains many ambiguities, some of which have been helpfully pointed out by the noble Lord, Lord Krebs, and the noble Baroness, Lady Brown. The clause domesticates all directly effective treaty provisions whether or not they will be capable of meaningful application following exit. Several problems arise from that which the Government are aware of and say they will address. However, I am not entirely comfortable with the sort of formula the helpful Solicitor-General brought to the committee when he came to see us. He said:

“‘The Government will consider how these rights can be given effect to in the context of our exit from the EU on a case-by-case basis ahead of exit day’”.


There is an awful lot of work to be done before exit day and I look forward to receiving this case-by-case analysis at some point.

The Constitution Committee suggested amendments to deal with some of the ambiguities, but it could not deal with all of them for the reason we set out in paragraph 37. Reciprocal rights are,

“inextricably linked to the legal relationship between the UK and the EU post-exit. The full impact of Brexit upon reciprocal rights will not be known until the UK’s future relationship with the EU is determined. This highlights a broader issue that the uncertain environment in which the Bill is being considered makes it difficult fully to assess its likely consequences, including its constitutional implications, at the time of its passage”.

That is putting it gently, but that is the difficult situation in which we are operating.

I turn specifically to the effect of Amendment 26. I remain puzzled by not just the ambiguity but the conflicting language used in the clause. The noble Lord, Lord Pannick, elucidated this at the start of this short debate by citing the phrase,

“not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”.

The committee responded by saying:

“It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect, or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered”.


That is a pretty hypothetical basis on which to defend a right. We said:

“The language of clause 4 supports the latter interpretation, but the explanatory notes appear to endorse the former”.


A great deal of paper is being shuffled around at the moment because it may be that the ambiguity is being resolved as I speak, although I suspect that what is really being looked at is how far we can get tonight in the course of these proceedings. However, we need some help in getting the Government’s view on this, but that might not be sufficient because we also need to ensure that the Bill is tightened up in this respect.

[The Duke of Montrose (Con)]

My Lords, we have spent a lot of time today trying to define what is a snapshot and what could give clarity in the transposition of the legislation. We are now poking around as to where the fuzzy edges are, and some of this is very much more than just fuzzy edges. In fact, it is very good that the noble Lord, Lord Krebs, outlined areas that this measure would solidify and imply. My worry about Amendment 28 concerns subsection (3), which deals with law that,

“incorrectly or incompletely gives effect”.

It is hard to say what that will apply to. It is obviously drawn up that way because we do not know what it will apply to. In some ways, it seems we are now trying to include laws in the snapshot when we do not know what they are or what they might be.

My main gripe is that the amendment says that,

“a Minister of the Crown must make regulations for the purpose”.

This is one of the things for which we might say that a Minister of the Crown “may” make regulations, because we wish to leave some power to the UK Government to intervene to construct the type of law we would like to see.

[Lord Renfrew of Kaimsthorn (Con)]

My Lords, in welcoming Amendment 28 I note that it supplements Clause 4 in a way that can be considered constructive. Among other things, it would strengthen the position of archaeology and cultural heritage, which are often associated with environmental issues. A new policy statement has been promised, but that would surely be weaker than a statutory approach, which this amendment follows. It takes a more comprehensive approach in what I consider to be a constructive way.

As drafted, the Bill does not fully transpose the environmental principles set out in the European Communities Act 1972 into United Kingdom law. The amendment would therefore impose a duty to make regulations to remedy this deficiency. It is fair to say that we do not want our rich body of archaeological remains to be put at risk by deficiencies that might remain in the legislation following our withdrawal from the European Union. The amendment is supported by the Council for British Archaeology and the Chartered Institute for Archaeologists. It offers an important safeguard and I am very happy to support it.

--- Later in debate ---

[The Duke of Montrose]

My Lords, the reason I dare to intervene at all is that I have always had a great interest in conservation, as a farmer, and in looking after nature reserves and various such things. Will the Minister make something clear? It seems to me that the habitats directive and the water directives are already part of our law; I do not quite see how they would fall through in the absence of some of these clauses, but we do want to tighten up the legislation.

[Lord Beecham (Lab)]

My Lords, I start by affirming that we on these Benches—or what is left of us—support the thrust of Amendments 26 and 28, which deal with significant issues raised in Clause 4. As the Constitution Committee avers, as drafted,

“Clause 4 will … domesticate all directly effective treaty provisions, whether or not they will be capable of meaningful application”.


What is the point of such an outcome? What is the point of creating a situation under which in the case of domesticated provisions which have,

“no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions”?

More substantively, what is the Government’s response to the damning conclusions of the committee in paragraphs 37 and 38 of its report? These describe the implications of the Bill for reciprocal rights as “uncertain” and state:

“The full impact of Brexit on reciprocal rights will not be known until the UK’s future relationship with the EU is determined”.


What is the Government’s position on this issue?

Given the concerns of the committee, what, if any, estimate have the Government made of the consequences of the Bill’s impact in this area, and what is their response to the committee’s observation that:

“The ambiguities in the interpretation and effect of clause 4 will inevitably cause legal uncertainty about a fundamental provision of the Bill. This will undermine one of the Government’s main objectives in bringing forward this Bill”?


The committee concludes its observations on this part of the Bill by stating starkly:

“The ambiguities need to be resolved”.


Does the Minister agree that there are ambiguities? If so, how and when will the Government address the problem?