Retained EU Law (Revocation and Reform) Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 6th February 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, having spent too much of my working life in the innards of EU law, I am as conscious as anyone of its inadequacies, particularly for a country that is no longer able to shape the content and development of that law, as I think we once did rather successfully through our participation in its Commission—where I had the honour to work for Lord Cockfield—its Council of Ministers, its Parliament and its courts. So, it is right that we should engage forward gear, address the issue of supremacy and review the EU laws retained in our system, weighing in each case the advantages of continued alignment against the opportunities for striking out on our own.

Need this take what the Minister described as “decades of parliamentary time”? Not if we follow the model that literally stared us in the face for the first three hours of this debate: the Financial Services and Markets Bill, which students of the annunciator will know was being debated in Grand Committee. Hundreds of items of retained EU law, identified after a painstaking review, are listed in that Bill for revocation—a list which is, of course, amendable by Parliament. Powers are provided for new rules to be made, after consultation and engagement with parliamentary committees. That is a process which could and should be adapted to other fields in which the view is taken that it is time to move on. Yet this Bill takes another course: it asks us to sign away both the authority of Parliament and what remains of this country’s reputation for considered and responsible lawmaking.

What is to be done? Like the noble Lord, Lord Whitty, I offer a few ideas to start us off. First, on revocation, if the sunset clause cannot be moved, the Commons should at least have a veto over decisions to revoke, as provided by the cross-party Creasy-Davis amendment in the other place. This would place a guard-rail on the edge of the cliff.

Secondly, replacement: the astonishing Clause 15 should be removed, as recommended by our Delegated Powers Committee. If it must remain, as our Secondary Legislation Scrutiny Committee has said, we must contemplate what it described in carefully chosen words as

“a procedure by which the Houses can modify an instrument.”

Clause 16, its powers not time-limited like the others, also needs attention.

Thirdly, there should be a guarantee that powers in the Bill will not be used in a way that contravenes the Northern Ireland protocol or the level playing field provisions in the trade and co-operation agreement.

We should also address a point not much touched on today: the legal certainty issues in Clauses 4 to 7 noted by the Bar Council—commendably on its part, since we barristers thrive on uncertainty and, unamended, the Bill will provide rich pickings indeed.

Last May, in the debate on the gracious Speech, the noble and learned Lord, Lord Judge, asked,

“what is the point of us being here if, when we identify a serious constitutional problem, we never do anything about it except talk?”—[Official Report, 12/5/22; col. 130.]

He was right. The Bill is an attack on the constitutional role of Parliament, a view expressed eloquently across this House from the noble Baroness, Lady Parminter, to the noble Lord, Lord Hamilton of Epsom. The analogy of powers under the European Communities Act 1972 is a false one, as the noble Lord, Lord Verdirame, explained with authority, and even if it were otherwise, two wrongs would not make a right. The powers of this House are modest, and properly so, but if the views so firmly expressed today are not heeded by government, we will be justified in using every one of them.

United Kingdom Internal Market Bill

Lord Anderson of Ipswich Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Wednesday 18th November 2020 Lords Chamber

[Lord Stevenson of Balmacara (Lab) [V]]

My Lords, In moving Amendment 10, I also speak to Amendments 21, 41, 48 and 49, which together deal with various exemptions and derogations that we believe should be appropriate in the case of the market access principles. I thank the noble Lords, Lord Anderson, Lord Young and Lord Wigley, and the noble Baronesses, Lady Bowles and Lady Jones, for their support, and I look forward to their contributions.

Now that we have accepted by a majority Amendment 1 from the noble and learned Lord, Lord Hope, and the Government have said they will not oppose Amendments 38 and 51, I hope we can assume that the common frameworks process will be at the centre of our future concerns about the internal market. We think it will ensure that the devolved nations will be able, within the limits of UK law, to formulate and apply policies that best suit their local circumstances, working together in order to enable the functioning of the UK internal market. Each devolved Administration will retain the ability to diverge from the harmonised rules in their territory within the mandate given to them by the devolution settlement, but only after consulting the relevant policy group to see if a common outcome can be reached and agreed to.

We fully accept that there have to be backstop powers retained by the UK Parliament that are subject only to the normal “consult and seek consent” modality, and we accept that that brings into play the market access principles system set out in the Bill. However, that does not operate by agreement. It is hard-edged; it is a set of strict statutory rules that do not permit any real divergence. For example, my noble friend Lord Foulkes mentioned in the last group that Clause 8, on the non-discrimination principle, refers to “legitimate aims” and limits them to

“the protection of the life or health of humans, animals or plants”

and/or

“the protection of public safety or security.”

So it is very tight—but does it have to be that way? Surely we want exclusions to permit various exceptions from the lists, as set out in our Amendments 10 and 41. Others will make the case for the extension of the legitimate aims in Amendments 21 and the rest, affecting services.

The Welsh Government put around a note, which they prepared in response to the papers put around last night by the Government. They argue that the Bill’s limitations have been too tightly drawn and that they go much beyond current international regulations, and effectively put new restrictions on devolved competence. One of the policy statements issued yesterday by the Government said:

“Each part of the UK will be obliged to follow a rigorous process to justify an exclusion. This will include suitable evidence and a risk assessment shared between UK administrations, to confirm the nature of the threat posed and the effectiveness and proportionality of any proposed measure in response.”


This is hard-edged. This is not the language of consult and seek consent, let alone of a Government trusting in the common framework process.

Our amendments seek to add significant exclusions to the market access principles for goods and services and in relation to the recognition of professional qualifications. We think they are justified, we think they are proportionate and, otherwise, will not have an adverse impact on the powers we think the UK Government must retain. I beg to move.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, it is a pleasure to follow the noble Lord, Lord Stevenson, and to have put my name to five of the six amendments in this group. The purpose of these amendments is to preserve the potential for legitimate policy divergence that is inherent in the devolution settlement. That potential is squeezed out for the future, save in limited and inconsistent respects, by the non-discrimination and mutual recognition principles as they appear in the Bill.

The scheme of these amendments is to provide for derogations from the applicable market access principles, to be available on a consistent basis across Parts 1, 2 and 3 of the Bill. Such derogations would be safety valves against the pressures that build up when central and local interests clash—safety valves of the sort that the member states of the European Union were sensible enough to gives themselves in their treaties, and that exist in devolved, federal and confederal states all over the world. Their purpose is more than merely political. The exercise of devolved powers has, in the past, produced creative and positive results in fields ranging from the requirement of fire suppression systems to the sale of electric shock collars. Noble Lords drew attention in Committee to the potential for similar action in future, if not prevented by the Bill, from measures against obesity to bans on the sale of peat.

The amendments are not a recipe for pointless and obstructive barriers to trade, which I strongly agree are to be avoided, because the use of those exceptional powers would remain subject to strict statutory controls. If challenged, rationality and the absence of protectionist purpose would have to be demonstrated, much as when the Scottish Government were put through its paces on minimum alcohol pricing. Yes, there will be cases in which compliance has to be demonstrated in the courts. Who, if not the courts, can be the arbiter of whether public authorities, whether central or devolved, have exceeded the limits of their legal authority? Litigation is always an inconvenience, and I would not wish it on my best friend, but the universal fact that the scope of a legal power must, in the last resort, be determined by the courts is no sort of justification, I would suggest, for withholding or removing that power from the devolved Administrations.

As for cases that last 10 years, as a barrister I can only dream enviously of such a durable source of income. Urgent cases can be quickly resolved, and the major source of delay will be removed once we move outside the jurisdiction of the Court of Justice of the European Union. Without its intervention, the time occupied by the Scottish case on minimum alcohol pricing —which delayed the introduction of that measure—would have been very much shorter.

The common frameworks incentivise consensus. Among their many advantages, therefore, is a likely reduction in recourse to litigation. So I welcome Amendment 1, which, if it remains in the Bill, will prioritise the common frameworks, and significantly narrow the circumstances in which the market access principles apply. For as long those principles remain in the Bill, it seems to me that something in the nature of these amendments is needed, if only and the noble Lord, Lord Stevenson, as a backstop. These amendments would diminish, in a controlled fashion, the crudely centralising force of the market access principles. They would also help to preserve the mutual respect between nations that the perpetuation of our union requires.

United Kingdom Internal Market Bill

Lord Anderson of Ipswich Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 28th October 2020 Lords Chamber

I said at the start of this speech that these amendments were belt and braces in approach. If the Minister were inclined to accept the approach of limiting the application of market access principles to areas where it has proved impossible to reach agreement on common frameworks, I and my colleagues might feel less determined to pursue the other amendments in this group. Conversely, only if the Government were to bring forward similar amendments to widen the public policy exceptions and increase the scrutiny of whether a Government are diluting protection would I be willing at this stage to think again on the amendments, which would make it impossible for the Government to short-circuit the patient work of agreeing common frameworks. I return again to the theme of building consensus and building agreement. That is the way for us to move forward as a single United Kingdom.

[Lord Anderson of Ipswich (CB) [V]]

My Lords, I have put my name to Amendments 35 and 51, which have a number of near relatives in this group. The noble Baroness, Lady Noakes, reminded us earlier today that the purpose of the Bill is to facilitate trade and that different rules in different jurisdictions create costs to business and so may operate against the consumer interest. That is a highly respectable economic argument against devolution, but devolution has been implemented and the logic of devolution is diversity—including, as the noble Lord, Lord Liddle, said, the ability to experiment.

A devolved power to regulate is valuable only if it can be used to give effect to a policy objective of a devolved Administration. Its use will be pointless and damaging to businesses in the devolved territory if non-conforming goods, unencumbered by the higher local standards, have to be admitted from elsewhere. A single market that inhibited the rational, proportionate and non-protectionist use of devolved powers in pursuance of vital policy objectives would put devolution into reverse. This is shown by the fact that it was deemed necessary to exempt existing measures from the market access principles. It would also, of course, be a never-ending source of grievance for nationalists and separatists.

In connection with that, there are two puzzling features of the Bill. The first is the small number of aims that it even acknowledges as legitimate. I do not, myself, insist on all the drafting of Amendment 51—I recall that the European concept of sociocultural characteristics mystified the courts during the Sunday trading litigation—but why is there no place in the Bill for aims as basic as environmental protection save, curiously, in relation to fertilisers and pesticides, and consumer protection? If aims as important as the protection of public safety and security may justify indirect discrimination, as Clause 8(6) provides, why must those same aims, however compelling the circumstances, give way to outside business interests in every case of direct discrimination or mutual recognition of product requirements?

The noble Lord, Lord Callanan, said earlier that we need not slavishly copy the EU single market and he is right—successful, as I am sure he will acknowledge, as that single market has been. However, with respect to him, that is not a sufficient answer. The issue did not go away when we left the EU, and it needs to be addressed on its merits and with proper respect for our own devolution settlement.

The second puzzling feature is the patchy treatment of such aims as are acknowledged, particularly public health. That aim is most broadly expressed in Clause 8(6), but as a potential justification only for indirect discrimination. Paragraph 1 of Schedule 1 provides a general exclusion relating to the movement of pests and disease but paragraph 2, on the movement of unsafe food and feed, applies only to mutual recognition while paragraph 5, on public health emergency, applies only to direct discrimination. The problem with defining permitted public health derogations in such a limited and piecemeal fashion is that, outside the scope of those derogations, policies motivated by public health, however necessary and well-designed they may be, must always give way to trading interests, without any ability to balance the competing factors.

An injection of principle is needed here. That principle, I suggest, is that:

“All the exceptions should apply to the entire panoply of market access rules.”


Those are not my words but those of Dr Peter Oliver, practitioner and author of the leading academic text on the free movement of goods, commenting on the Bill on the “EU relations law” blog. The same principle infuses Amendment 52A in the name of the noble Lord, Lord Young of Cookham, and I support it for that reason. Its list of legitimate aims is disappointingly short, but since the noble Lord has also put his name to Amendment 35, perhaps there is nothing between us on that. To accept that all the exceptions should be capable of applying to all the market access rules need not cause trade to suffer, because the application of those derogations would be regulated, as it is in federal and devolved jurisdictions across the world, by strictly expressed constraints based on necessity, rationality and proportionality.

If the Government are concerned about their ability to include devolved markets in a US trade deal, I add that countries from Canada to Switzerland—and, indeed, the EU—have proved perfectly capable of entering into international trade agreements irrespective of their internal allocation of powers. Consultation, consent and co-ordination are surely the keys.

Most of the amendments in this group would function as shock-absorbers. Their purpose, as I see it, is not to wreck the Bill but to remove genuine grievances on the part of the devolved Governments, weakening the case for separatism and rendering the market access principles, in the areas where they may be necessary, operable in the long term. I hope they will be viewed as the constructive proposals that I believe them to be.

Finally, I endorse the strong comments of our committees, and of other noble Lords, as regards the excessive and extremely troubling powers given to the Secretary of State by, among others, Clause 8(7) and Clause 10(2). In this group, Amendments 39A and 47A, in the name of the noble Lord, Lord Young of Cookham, would retain those Henry VIII clauses, but restrict their use to the adding or broadening of legitimate aims and exclusions. We would be authorising King Henry to act benevolently, but not, in the phrase attributed to Sir Edward Leigh, as “a bastard”. That course, though not for the constitutional purist, has a certain pragmatic attraction, at least for me.

[Baroness Jones of Moulsecoomb (GP) [V]]

My Lords, I have listened to the vast majority of the debates today and I have actually been shocked by some of the speeches: they were, unusually, wonderfully tough and very critical. Therefore, I hope that Ministers are actually listening and understanding that we are trying to help. It thrills me to be speaking alongside so many incredible noble Lords; in particular, the forensically brilliant noble Baroness, Lady Finlay of Llandaff, and the amazing legal minds of the noble Lord, Lord Anderson of Ipswich, and the noble and learned Lord, Lord Hope of Craighead. It is very comforting to be in agreement with them.

Noble and learned Lords will go into the intricacies of EU law, which is, of course, incredibly important, but to me there is one very simple principle, which is that the Government have taken a decision not to be part of the EU’s single market, saying that it is a bulldozer and prevents our Parliament legislating on important policy areas. However, the Government then seek to create their own bulldozer, a new single market that flattens everything and does not even have the carve-outs and reservations that EU single market laws protect, such as legitimate environmental and health policies. There are times when a bulldozer is the perfect machine, but not in this legislation. It is totally false of the Government to make any comparison of this UK internal market with existing EU arrangements without including any of these policy protections and derogations. The Bill actually represents a huge centralisation of power in the UK Government, and tramples over existing legislative rights of the devolved Parliaments, as many noble Lords have said already.

It also demonstrates what I see as the extremist view of this Government—that the free market and capitalism should override everything else, and that there is no legitimate policy that can challenge the free market. That is completely wrong and fundamentally at odds with what the majority of people in this country believe. For me, this legislation is a dangerous wolf that the Government are trying to dress in populist sheep’s clothing as somehow defending us from the hostile manoeuvres of the European Union. The truth is something else entirely: this is an important building block in the extremist ideology of a hypercapitalist future in which the market subverts and consumes everything else. Noble Lords must oppose this.

United Kingdom Internal Market Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard): House of Lords
Monday 19th October 2020 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, shortly after the Singing Revolution restored democracy to Estonia, its legal profession welcomed a British delegation to Tallinn’s largest law firm. At the centre of its new partners’ table was a brass disc, proudly engraved with the words “pacta sunt servanda”. As a newly independent nation, our hosts knew the importance of ensuring that promises are honoured, whether in commercial agreements or international treaties.

The precise meaning of such promises is often disputed, but Part 5 of this Bill is no inadvertent or merely arguable breach of some vague or trivial international undertaking. Its whole purpose is to signal to our negotiating partners a kind of anarchic disdain: disdain for this Government’s recent, specific and binding commitments on export declarations and state aid, and disdain for the very principle—fundamental to our status in the world—that treaties must be observed. With respect to the noble Lord, Lord Lilley, the Kadi case in which I appeared against the EU is no sort of precedent for a similar attitude on the part of the EU or its court. In that very case, the Court of Justice of the European Union affirmed its long-standing insistence that

“the European Community must respect international law in the exercise of its powers.”

The Secretary of State for Northern Ireland and a unanimous Constitution Committee have expressed the view that the Bill itself is in breach of the withdrawal agreement, or will be by the time it is entered into force. I agree, although perhaps it matters little since whether it is unlawful itself, the whole point of Part 5 is, on any view, to enable unlawfulness.

Then there are the judges: Francis Bacon’s “lions under the throne”. Here too, the Bill is deeply troubling. It not only authorises the Government to act unlawfully but deems such unlawful actions to be lawful. The lions are still on show, but they are comprehensively defanged by successive subsections of Clause 47. Deprived of their usual power to strike down unlawful regulations, they might as well be mounted on the wall.

Imagine, if we can, that the EU were to renege on the guarantees that it gave to British citizens in the withdrawal agreement. There would be justified accusations of perfidy and duplicity, yet it is, I am afraid, precisely such duplicity that we are asked to facilitate today. Can the strategic damage to our reputation as a trustworthy international partner be mitigated by any tactical advantage in the negotiations? Rather the reverse, I suspect, as the noble Lord, Lord Jay, suggested with all his diplomatic experience. Showing contempt for our existing agreement with the EU will hardly encourage it to sign a new one. More likely it will enhance the unity of the 27, at just the time when we should be testing it, and its determination not to give us the benefit of any doubt.

The Bill seeks to make Parliament complicit in a scheme that openly flouts two foundational principles: that agreements, once made, should be kept, and that government is not above the law. How could we possibly go along with that?

This is not a House of opposition, as the noble Lord, Lord Cavendish, rightly reminded us; but it is a guardian of constitutional principle and, as such, it needs to send a strong and clear signal. For my part, I look forward to supporting the amendment of the noble and learned Lord, Lord Judge, to voting at the earliest feasible opportunity not for some messy compromise but for the simple removal of Clauses 44, 45 and 47, and, like my noble friends Lord Butler and Lord Lisvane, to strapping in, if necessary, for a bumpy ride.