European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I support what the noble Lord, Lord Howarth, has just said. Clause 21 says:

“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament (including modifying this Act).”


That is about as broad as the power could possibly go. It seems to me to be entirely unacceptable that there should be absolutely no curb of any sort upon the powers of any Government, and I consider that it is something that this House ought to be very worried about.

[Lord Beith (LD)]

My Lords, I am a signatory to Amendment 4 and my willingness to support it is partly based on a constant desire to police the boundary that ought to exist in the use of regulatory powers, so that they do not permit the imposing of taxation or fees, the making of retrospective provision, the creation of criminal offences or the establishment of public authorities, some of which could arise as a result of what is in the protocol. The Minister may well want to explain to what extent he thinks the protocol itself limits the powers that can be used under this section.

This is an area we have often been reminded of by the noble and learned Lord, Lord Judge, who until his recent departure was such a valued member of the Constitution Committee. If we had not policed the boundary, he would have been urging us on to do so. Indeed, he may have something to say on this amendment. It is an issue we keep having to come back to, because there are those within government who seem to think they can keep putting these kinds of powers into Bills, and we know how dangerous they are.

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Moved by

[Lord Beith]

12: Clause 26, page 30, line 13, leave out paragraph (b)
Member’s explanatory statement
This amendment would remove the power of Ministers by delegated legislation to decide which courts and tribunals should have power to depart from judgments of the Court of Justice of the European Union and by reference to what test.

[Lord Beith]

My Lords, I rise to move Amendment 12. This amendment will not delay Brexit. It will not even delay this Bill, which is going to the Commons in any case. However, it will avoid a great deal of legal confusion and safeguard the independence of the judiciary. It reflects concerns held by the Constitution Committee, several members of which have taken part in the debates, including of course our chair, the noble Baroness, Lady Taylor. The background is that European Court of Justice case law will be relevant in interpreting retained European law. We recognised that in the 2018 withdrawal Act and made provision for it to be dealt with, so that the Supreme Court and the High Court of the Justiciary would be able to depart from EU case law when they thought it right to do so.

Clause 26 of this Bill gives Ministers very wide regulation-making powers to decide which courts can depart from CJEU case law. It could be any court, right down to the magistrates’ court, the county court or the sheriff court. Through unamendable statutory instruments, Ministers could decide what test the courts should apply when considering whether to depart from EU case law. Ministers could effectively direct the courts to disapply case law in specified circumstances. Bear in mind that lower courts cannot bind other courts, so we will have conflicting interpretations and a lot more litigation as a result.

These are not appropriate powers to be exercised by regulation. They open the way to ministerial interference with the courts. If any of this needs to be done, it should be done in primary legislation. I would have been happy to see provision in the Bill to extend the powers in the 2018 Act to the Appeal Court and the Inner House of the Court of Session, for example. However, I have tabled these amendments on Report because last week’s proceedings in Committee were inconclusive. I said then that when such serious concerns are raised by so many noble and learned Lords, including those with a lifetime of experience in interpreting the law, Ministers need to think again and respond.

I encouraged the noble and learned Lord, Lord Mackay of Clashfern, to use his skills when he spoke in the debate to think of ways in which we could get through this and to encourage Ministers to do so, which he certainly has. Amendment 14, his valuable amendment in this group, would be very helpful. It does not do all the things I sought to do by deleting some of these powers, but it would very much clarify the situation I am worried about, of lower courts making rulings which conflict with those of other courts. If the noble and learned Lord decides that he wants to press his amendment to a vote, in circumstances which I will refer to in a moment, I would be happy to make way by withdrawing mine in due course to enable him to do so. I hope he can make it clear to us when he explains his amendment whether that is the course of action he wishes to take.

I said that reconsideration was necessary. I believe that such reconsideration had taken place and that the noble and learned Lord, Lord Keen of Elie, was ready to move an amendment at Third Reading which would have met all our concerns. I have a copy of that draft amendment. The noble and learned Lord was expected to wind up this debate, but is no longer doing so. That seems very significant to me. I think he knows full well that the Bill as it stands would be a source of legal confusion and would lead to this danger of Ministers having the power to impose an unspecified new legal test on the courts, a test which could not be amended by Parliament. Parliament is about to make bad law which Ministers know to be bad. I am afraid that my conclusion is that No. 10 Downing Street is in a sulk because this House carried an earlier amendment to the Bill. The noble and learned Lord, Lord Keen, is an entirely honourable man who serves the House very well and is always a man of his word. I think his absence from the debate at this stage indicates that some exchanges in the Government have led to this House being asked to make law that it knows to be bad. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, when we debated this clause in Committee, we looked at two key provisions: which courts should be able to look at this matter, and what the test should be. I was particularly concerned about saying what the test should be, because I regarded that as an interference with judicial independence—and I still regard it as such. If Parliament sets out the test, as it did in the 2018 Act, for the Supreme Court and the High Court of the Justiciary, that is the law and the courts can therefore take it and act on it. However, it seemed to me and a number of your Lordships that it was not proper for a Minister to deal with the judiciary in these circumstances. Having the Minister set what the test should be by regulation really should not happen. That was the conclusion of the debate in Committee, generally speaking.

When I thought over that, I concluded that we were blocking altogether what the Government were seeking to achieve. I therefore felt strongly that it was my responsibility, along with others, to see whether there was some other way of dealing with this problem. I have thought about it a good deal and, as I understand it, the Prime Minister said that he was in favour of every court being able to deal with this matter. I was anxious that my proposal should achieve that, if at all possible, because he had said that in good faith as part of his election campaign. Therefore, I felt that I should try to think up an amendment which gave that power. Amendment 14 does that because it allows any court in the United Kingdom to consider this matter and make a judgment on it. However, because of the nature of the judgment, there is a requirement that it be referred to the Supreme Court, which should have a power to grant the result, on condition that it has a power not to hear it if it feels that the application was not very substantial or very good, as it has for many appeals in the ordinary course of events.

I can see that having that sort of burden on the Supreme Court might be rather disagreeable. Therefore, it was quite reasonable to think of giving that power, the result of the reporting power, to the Court of Appeal in England—I think Wales and Northern Ireland would also be covered by that—and to the Inner House of the Court of Session in Scotland, which is its equivalent. The High Court of Justiciary would of course also have that responsibility in criminal cases. I am very open to negotiating how this should happen, but I venture to think it important that we consider this issue carefully. I hope that your Lordships may feel that we should pass this amendment.

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[Lord Callanan]

My Lords, I shall speak to Amendments 12 and 13 in the name of the noble Lord, Lord Beith, and Amendment 14 in that of my noble and learned friend Lord Mackay of Clashfern. We debated this matter at length in Committee and the Government have noted the strength of feeling across the House about both a power in principle and the different uses to which it might be put. However, I regret to inform the House that the amendments cannot be accepted.

The clause provides for an important principle: UK courts should be able to interpret UK laws. After the implementation period, that is a matter for us to decide. My noble and learned friend Lord Keen and I have had significant engagement on this issue with noble Lords across the House during the past few days. I can say on behalf of both of us that we are grateful to those noble Lords who met us. While I know that it has not been possible to allay noble Lords’ concerns, I hope that it has become clear that the Government will implement this policy sensibly and in a way that works for courts across the whole United Kingdom.

As my noble and learned friend Lord Keen noted when we debated the matter in Committee, two vital safeguards are built into the Bill. First, we must consult the senior judiciary. The Government are also happy to make it clear that, where the clause requires us to consult other appropriate persons, we also intend to engage with the devolved Administrations.

Secondly, this power can only be used before the end of the implementation period—a critical issue. There is no way in which a Minister can interfere with a live case, nor seek to unpick a single historic judgment which the Government have taken a dislike to. This is a power to allow the Government time to consult, consider and soberly extend the jurisdiction of UK courts to the historic case law of the Court of Justice of the European Union, properly reflecting that, after the end of the IP, such case law will form part of our domestic legal order. The way in which courts are to do this will be made clear. At all times, there will be legal clarity on the rules of interpretation when any cases concerning the body of retained EU law come before those courts. Again, I thank noble Lords for their contributions to this debate and their constructive engagement with our proposals.

Amendments 12 and 13, in the name of the noble Lord, Lord Beith, would mean that retained EU case law would continue to bind our courts, other than the highest courts of appeal, long after the end of the implementation period. For this reason, those amendments are not acceptable to the Government. Amendment 14, in the name of my noble and learned friend Lord Mackay, is an interesting suggestion but, as drafted, it would create a reference process and confer a role upon the Supreme Court that would be novel in a domestic context and could have unintended consequences, including serious implications for the role and case load of the Supreme Court. We look forward to continuing to work closely with noble Lords in the development of these regulations and will continue to listen to the many constructive ideas that have been put forward on this subject. With our commitment to work closely across the House and consult on this issue over the coming months, I hope that the noble Lord will be able to withdraw his amendment.

[Lord Beith]

My Lords we are no further forward at all on which courts it is intended shall acquire the power; on what the test they will be required to carry out is; or on any reliable process by which we can ensure that Ministers do not get involved in specifying the circumstances in which courts, at any level, can depart from existing case law. The beauty of the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, is, as he explained, that it seeks to satisfy the Government’s objective—as restated now by the noble Lord, Lord Callanan—that any court in the land should be able to engage in this process. This is not a very wise thing to do but, if it is going to be done, it should be done with the protection suggested by the noble and learned Lord: that it should involve a reference process which the Supreme Court can take up if it sees reason to do so. On that basis, and knowing in what high regard the noble and learned Lord is held, I am content to seek the leave of the House to withdraw my amendment, so as to facilitate him pressing his.

[Lord Mackay of Clashfern]

It would be right for the noble Lord, Lord Beith, to continue with his two amendments, because I am proposing the option in my amendment in the event of his disappearing. I think I am right in saying that. I may be wrong; I stand to be corrected. I understood from the Public Bill Office that I did not need to put my name to Amendments 12 and 13—in fact I could not, because there were four there already. It may be that those amendments should just stand.

[Lord Beith]

The consequence of my amendment, if it was carried, would be that the amendment in the name of the noble and learned, Lord, Lord Mackay, could not then be taken, because the words upon which it bites would have been removed. I would be content to divide on my amendment, to test the opinion of the House.

[Baroness Taylor of Bolton (Lab)]

My Lords, it would be possible for the Government to bring back something along the lines suggested by the noble and learned Lord, Lord Mackay, should this amendment be carried. It would be foolish not to allow the House to make a clear decision about what it thinks on Clause 26(1)(b). As has been said, time and again, this is a serious and constitutionally significant move. It would, therefore, be wise to test the opinion of the House.

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[Lord Beith]

I have received advice from two quarters for which I have particular respect, including my own committee chairman. It being the case that if my amendment were carried there would be no need for the amendment in the name of the noble and learned Lord, Lord Mackay, but if it were not then we could still press for a division on his, I will test the opinion of the House.