Retained EU Law (Revocation and Reform) Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Thursday 2nd March 2023 Lords Chamber

[Baroness Ludford (LD)]

My Lords, I would like to speak to Amendment 62, on which I welcome the support of the noble Lord, Lord Anderson of Ipswich. I will also mention Amendment 67, which is about Ministers being able to extend the sunset for the matters covered by Clauses 3 to 5, which at the moment is lacking. There are such powers for Clause 1, but there are not similar powers for the very important matters covered by Clauses 3 to 5. Amendment 137 is a consequential amendment and introduces our familiar theme of the affirmative procedure.

I want to concentrate on Amendment 62, because it is about removing

“the automatic deletion by the sunset clause of the rights, powers, liabilities etc currently recognised and available in domestic law by virtue of section 4 of the”

European Union (Withdrawal) Act. The amendment calls for no abolition until these rights, powers and liabilities et cetera have been identified, and subjected to consultation and to a report laid before the relevant legislature—Parliament or the devolved ones—detailing the consequences of abolition. We do not have a huge amount of time, so I will not laboriously go through the text of the amendment, which is before noble Lords, but they will recognise the structure of it. On these Benches, there is a pattern to the amendments that we have tabled—Amendments 48, 42 and others which escape my memory at the moment—which are all about this considered way of making decisions.

The point about Amendment 62 is that it reflects one of our consistent objections. When I say “our”, I think I can say that right across the House, at Second Reading and in three days of Committee, there is a concern that it would be almost impossible to know what domestic law would actually look like after the end of this year. This offends key principles of the rule of law, including the requirement of legal certainty, human rights protection and other matters. The risk that this amendment is designed to address is that retained EU law will be revoked unknowingly; it is particularly prevalent for Clause 3 as the dashboard is far from comprehensive on this non-legislative form of law.

These rights encompassed by Clause 3 were originally recognised domestically by Section 2(1) of the European Communities Act and were retained by Section 4 of the EUWA. However, the potential effect of Clause 3 is arguably more serious than that of Clause 1. This is because identifying retained EU law to be deleted by Clause 3 is even more difficult than for Clause 1. We have been extensively through the difficulties of identifying retained legislation. Clause 3 is not a cataloguing of legal instruments. It requires legal research, often into case law of UK courts and the ECJ, to identify which EU treaty or directive articles have been found to contain directly enforceable EU rights and obligations. There may be further rights which are so obviously directly effective that they have never been litigated, and that provides a further challenge to identifying them before the deadline.

The Government have hardly started. Of the 3,800 pieces of REUL identified so far on the dashboard, only 28 rights, powers et cetera caught by the Clause 3 sunset have been identified, and there is no power to extend the Clause 3 deadline if Ministers run out of time. The noble Baroness, Lady McIntosh, has amendments to that effect, as we do in Amendment 67. To delete all those which are not saved by Ministers by the end of this year is reckless and unnecessary, so I am sorry but I am going to take a little bit of time. Unfortunately this group comes at the end of the day, and we are all tired and we all want to get home, but these are really important matters.

I have two examples which have not yet been identified on the famous dashboard so have not been subject to any consultations with affected individuals, organisations or businesses and could have a very severe impact if they are deleted by Clause 3. The first example is Article 157 of the Treaty on the Functioning of the European Union, the TFEU. This goes much further than the right to equal pay under the Equality Act 2010 because it is less restrictive with regard to comparators. For example, under Article 157, a woman teacher can compare herself to a man employed by a different education authority. They do not need to have the same employer. That type of comparison is not possible under the Equality Act. It requires comparison with a man employed by the same employer—it is usually a man; it could be the other way round but, let us face it, it is a normally a woman claiming equal pay with a man—so it has had a pretty revolutionary impact on the ability of women to get equal pay. However, Article 157 is not on the REUL dashboard as a directly effective right, so it would be repealed as a directly enforceable right by Clause 3 at the end of the year and women’s equal pay protections will be severely weakened as a result. Frankly, every woman in this country should be bombarding the Government with that fact. The Government have told us recently everything they say they are doing for women. I welcome anything that they are doing, but this drives a coach and horses through those claims.

The second example is Article 6 of the habitats directive. We have heard quite a bit about that directive, which is about the conservation of natural habitats and fauna and flora. One of the obligations in that directive has been found to be directly enforceable. It is the obligation of the competent authority, in our case the Environment Agency, in special areas of conservation and sites of international importance to habitats and species to

“take appropriate steps to avoid … the deterioration of natural habitats and the habitats of species”

et cetera.

This is a proactive and preventive obligation. It is not enough to react to deterioration once it has happened; it requires anticipatory protections to prevent deterioration and disturbance of habitats and species. That obligation has not been fully transposed into our domestic legislation. There remains in domestic law only a weaker duty on the Environment Agency to have regard to the habitats directive, which has been found not to impose a direction obligation, as article 6 of the EU directive does. So neither the habitats directive nor the case law on it appear on the REUL dashboard.

I hope that in his reply the Minister can address those two specific examples, which are not airy-fairy but very practical and significant. As things stand, this obligation will fall off the radar at the end of the year and the requirements on competent authorities to protect special areas of conservation proactively will be weakened. I must confess that I would like to have the noble Lord, Lord Benyon, here and to hear what he thinks of that.

Lastly, I recall that among the matters that Amendment 62 would require consideration of is the effect on our obligations under the trade and co-operation agreement and the protocol on Northern Ireland. That is a consistent point that we need to make from these Benches.

[Lord Anderson of Ipswich (CB)]

My Lords, I have signed Amendment 62 from the noble Baroness, Lady Ludford, and I take this opportunity to say a few words about Clauses 3 to 5 more generally.

I spoke at Second Reading and, although I have not so far burdened your Lordships by speaking in Committee, I have watched much of the first two days’ proceedings with what I can describe only as horrified fascination. Reference has been made today to the recklessness of the Bill. I hope to explain as briefly as I can that this recklessness is not confined to Clauses 1 and 2 but reflected just as strongly in Clause 3, as the noble Baroness just said, and indeed in Clauses 4 and 5.

The Prime Minister does not strike me as a reckless man. We do not know his view of the Bill but perhaps we can take something from the fact that when he was Chancellor, he was careful to ensure that the rules for which he was responsible were excluded from its ambit.

A constant theme of the committee debates on EU-derived legislation was what I think of as the warning lights on the dashboard: a catalogue of retained EU law that is not comprehensive, a hole of uncertain size where devolved legislation should be and, however much Ministers may wish to reverse the presumption of revocation, its application by default to any provisions that have fallen down what has been referred to as the back of the national sofa.

Clause 3 has attracted only a small fraction of the public attention devoted to Clauses 1 and 2 but is, if anything, even more productive of uncertainty. So far as I can work out, that uncertainty comes in three varieties.

The first uncertainty derives from the fact that, as the noble Baroness, Lady Ludford, said, no definitive list exists of the rights, powers and liabilities referred to in Clause 3 or, in all probability, is even capable of being prepared. The rights, powers and liabilities referred to include all those provisions of EU treaties that are sufficiently clear, precise and unconditional to confer rights directly on individuals, together with directly effective rights from EU agreements with third countries and directly effective rights in EU directives, subject to qualifications. All those rights had been preserved by Section 4 of the EU withdrawal Act in the interests of legal continuity. All are now to be removed in a single big bang moment at the end of the year, with no provision equivalent to Clause 2 for extending that sunset to a later date, as highlighted in the amendments of the noble Baroness, Lady McIntosh. These measures do not bear the brand “direct effect” on their foreheads; no one has ever made a full list of them. It is quite certain that the 28 directly effective rights listed in the dashboard, one of them repealed, can be only a tiny proportion of the total. No one has counted them, consulted on them or assessed the impact of their imminent removal.

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

I am grateful to the Minister. Of course, if you are going to use those codification powers, you have to know what you are codifying. I think he said a moment ago that work is under way to identify the rights, powers, liabilities, et cetera which are saved by Section 4 of the European Union (Withdrawal) Act. Only 28 of those rights, powers and liabilities have so far found their way into the dashboard. How many have now been identified now, and when does the Minister anticipate that the work will be complete?

[Lord Callanan (Con)]

As I said, the work is under way at the moment across all the rights codified in those sections. As the noble Lord said in his speech, this is a complicated area of law. I do not want to get into a complicated legal argument, so it is perhaps best if I seek advice from the lawyers and write to him, as he suggested, on the legal technicalities of that area.

[Lord Anderson of Ipswich (CB)]

I think I must have failed to get across, when I addressed the Committee earlier, that we are not here dealing with legal technicalities but with massive uncertainties at the very heart of the Bill, uncertainties that relate not to legislation but belong to legal principle. I tried to help by saying how I thought Clauses 3 to 5 related to Clause 7. If I was right about that, the task of applying any European authority under Clause 7 becomes astonishingly difficult, because a court has to read every one and see whether it contains general principles, direct effects or supremacy before it can even decide whether it is going to apply it or not. I hope I did not leave the Minister with the impression that these are legal technicalities, and I hope that, if he writes to the Committee about this, we will have a full explanation of how Clauses 3 to 5 and Clause 7 are intended to relate to each other.

[Lord Callanan (Con)]

I will talk to the lawyers and attempt to get the noble Lord an answer to his concerns.

The noble Baroness, Lady Ludford, mentioned the habitats directive. I am slightly loath to go back there, after the long discussion with my noble friend Lord Benyon on Tuesday, but let me restate again for the benefit of the record that the Government have been clear about the importance of environmental protection across the UK, not least through the Environment Act, which includes a legally binding target to halt the decline of nature by 2030. As I emphasised earlier in the debate, we are committed to meeting this target and we will of course not undermine our obligations to the environment.

--- Later in debate ---

[Lord Callanan (Con)]

I have some more remarks on Clause 3. Let me come to the end of them and, if the noble Lord does not feel that he has got an answer, we can talk about that further then.

I was going to move on to the point of the noble Baroness, Lady Ritchie, who tabled notice of her intention to oppose Clause 3 stand part of the Bill. For the reasons set out, the repeal of Section 4 of the 2018 Act is, in our view, a crucial part of the Government’s agenda to take back control of our statute book and improve legal clarity. I completely agree with the points made by the noble Baroness, Lady Chapman, about the Windsor Framework. We do not think this Bill has any effect on the agreements made. Of course, we will examine the text of that very closely, but it goes without saying that the Government are completely committed to the agreement and we would not wish to do anything in either this or future legislation to impinge on what I view as a fantastic agreement.

Moving on, Clause 4 abolishes the principle of the supremacy of EU law. I do not think that I have any notes to address the points made by the noble Lord, Lord Fox, so let me say that we will include that in the general write-around about—well, I will not refer to them as legal technicalities because the noble Lord, Lord Anderson, will tell me that they are extremely important legal principles. I will seek legal advice and get a proper answer for the Committee.

[Lord Anderson of Ipswich (CB)]

The Committee heard from a former Lord Chief Justice, the noble and learned Lord, Lord Thomas of Cwmgiedd, that these principles go to the heart of how common law is applied in this country. I do not think that that is a legal technicality.

[Lord Callanan (Con)]

I acknowledge the noble Lord’s point but I will get him a proper answer from the lawyers.