European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

Consideration of Commons amendments & Ping Pong (Hansard): House of Lords & Ping Pong (Hansard)
Wednesday 22nd January 2020 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say a word or two about the two amendments in which I had an interest. I am sorry that my voice is not quite up to it, but it is better than it was yesterday.

I am very glad that the situation now is that Parliament can act and get on with what is required. Clause 26 is the one I am interested in. Your Lordships will remember that the noble Lord, Lord Beith, moved an amendment to take out the provision which required a selection of courts to be made in a statutory instrument. I had understood that the Prime Minister had said that he wanted all courts to be able to deal with this matter in some way. By a majority of around 100, those in the House of Commons preferred that situation to what he said—that must be a matter of some interest. So far as I am concerned, I was extremely anxious to uphold what the Prime Minister said in his answer during the election.

Those in the Commons do not say that my amendment is unsuitable, but that it

“does not deal appropriately with the issue of domestic courts departing from the case law”.

But they do not say that their own provision is necessarily suitable either. I am sure that I, and all my noble and learned friends who spoke on these amendments, would be very willing to offer any help that may be required when it comes to promoting this statutory instrument.

[Lord Beith (LD)]

I wonder if I might be allowed to follow the noble and learned Lord, since we are discussing the amendments to Clause 26. He made such a bold and ingenious attempt to provide the Government with a reasonable platform on which they could deal with this problem.

I am faced with words from the House of Commons that my amendment would not leave an appropriate means of dealing with

“the issue of domestic courts departing from the case law of the European Court after IP completion day”—

but nor does the Bill as it stands. It relies on the use of a regulation-making power, under which any or all courts could be included, including lower courts which do not have the capacity to bind other courts and therefore can make many inconsistent decisions. It still leaves the Government with the power to, effectively, impose a different, unspecified test.

This is a very unsatisfactory situation, but the best thing that the Government can now do, since they have failed to accept either my amendment or that of the noble and learned Lord, Lord Mackay, is think very carefully before proceeding, because there is already sufficient statutory provision in place in the 2018 withdrawal Act, under which the Supreme Court and the High Court of Justiciary can do the job of deciding to depart from European case law. Should the Government wish to extend that to some other courts, perhaps to appeal courts, they will probably find sympathy and support in the House, but should they try to bring forward proposals by way of regulations of the kind that were widely discussed by very experienced colleagues around the House, they will meet resistance at that stage.

European Union (Withdrawal Agreement) Bill

Lord Beith Excerpts

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

[Lord Beith (LD)]

My Lords, I agree with much of what the noble Baroness said, and I also want to emphasise how much I agree with my noble friend who leads for us and who spoke at the beginning—my noble friend Lord Newby. He set out the broader issues very well, which enables me to concentrate on some of those that are of interest to the Constitution Committee. Noble Lords will have to wait until tomorrow to find out whether my views correspond precisely to those of the committee as a whole, when the report referred to by the noble Baroness, Lady Taylor, will come out in time for Committee.

I want to start with the claim about getting Brexit done, which is manifestly absurd. It is almost as if Moses had said to the Israelites, “Stick with me and I will get Exodus done by the end of the month.” He did not get it done by the end of the month; it took 40 years and he was not actually there at the finish. That ought to be a warning. I sometimes wonder whether Brexiteers have read the Bill. Although it repeals the European Communities Act, it simply reinstates and reapplies its provisions, for the rest of this year at least and, in many cases, for longer than that. We will transfer from being a member state with a vote and a veto to colonial status—accepting rules but having no say in them.

There are reasons for this carryover of time. Extricating ourselves from 40 years of working together is difficult, and in many cases against our economic interests. It means, for example, that decisions of the European Court of Justice handed down after the end of the implementation period will continue to have effect under Clause 5. And, of course, we are only at the beginning of a negotiating process that will not be completed by the end of 2020, even if a limited agreement is reached. As the noble Baroness, Lady Blackstone, and others pointed out, this Bill drops all provisions for parliamentary scrutiny of the negotiating process.

It makes me wonder what these new MPs for the old industrial areas of the Midlands and the north are going to do when the interests of their communities start to be traded for the interests of other communities, as the sorts of decisions that have to happen in these negotiations begin to be made. They will probably discover them via the European press, then see them reported in this country, because it will all emerge in the European Parliament while nobody here is being told anything about it. This is a process that requires a sensible method of parliamentary scrutiny.

The Bill has too many Henry VIII and other ministerial powers, and in a number of cases lacks the sifting or sunset provisions that could provide some safeguards. In Clause 26, Ministers are given inappropriate power over the courts, in a proposal that opens the door to legal confusion and multiple layers of litigation. It will allow Ministers to set up a scheme allowing any court, rather than just the Supreme Court and the High Court of Justiciary in Scotland, to depart from ECJ case law. If the Government have arguments to support the creation of such a scheme, the scheme should be on the face of the Bill—but I wonder how persuaded much of the Government is about whether this is really desirable at all. I suspect that a write-around of departments that included not only the Ministry of Justice and the Home Office but also Her Majesty’s Revenue and Customs, along with the various other departments that get involved in legislation, would show that they are not particularly enthusiastic about it. It is a dangerous course to embark on, and one that will cause considerable confusion, with the only beneficiaries being the lawyers who take cases under it—at almost any level, right down to employment tribunals, if the Government use these powers to the full.

In Northern Ireland the Bill reverses the principle that major change should have cross-community support by allowing decisions on the customs borders in the protocol to be by simple majority. The Government have not really advanced any clear reason for that, at a time when cross-community working is, thankfully, re-emerging in Northern Ireland.

The Bill contains an otiose assertion of the sovereignty of Parliament. The sovereignty of Parliament is a fundamental principle of the constitution. It gains nothing from inclusion in this or any other Bill, and its inclusion has no legal effect at all. Among other things, of course, it means that if it becomes necessary to extend the implementation period, which the Bill claims in Clause 33 to prohibit, Parliament—if the Government so chose—could readily pass new legislation to extend the implementation period or to achieve the same effect by different words—which is the whole basis on which the Bill is constructed. The Bill is constructed on the basis that we repeal the European Communities Act but give effect to its provisions as if it still existed. The Government can do exactly the same with the supposed restriction on extending the transition period, and they might well have to do so. Those who now wish to legislate sovereignty into existence, which seems bizarre to me, seem to forget that it is already there; it was there before they were born, and they too are subject to it.

Brexit

Lord Beith Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Callanan]

Yes, we have certainly discussed many aspects of it with the Government of Wales.

[Lord Beith (LD)]

How will it be possible for Select Committees of the House, such as those dealing with the constitution and statutory instruments, to examine the Bill to ensure that broad powers are not being given to Ministers which may extend even beyond Brexit?

[Lord Callanan]

We await the publication of the Bill later this evening. I am sure that the various organs of the House that wish to do so will have the opportunity to look at the provisions.

Brexit: Preparations

Lord Beith Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Callanan]

My noble friend asks some good questions. The answer is complicated. If the terms of the withdrawal agreement itself were to be altered by amendment, the effect would be that we could not ratify the treaty and therefore there would be no deal. Of course, there are other elements that could be amended, which would affect operations in the domestic sphere but would not affect our ratification of the treaty.

[Lord Beith (LD)]

The material that is most likely to cause disagreement between the two Houses concerns the powers that the Bill might give to Ministers and the extent to which they can act without parliamentary approval. We will not know how extensive they are until we see the Bill. Would it not be a good idea to have a contingency plan to make use of any extension which is offered to ensure that proper parliamentary scrutiny is given rather than sounding, as bits of the Statement do, like Captain Mainwaring declaring martial law?

[Lord Callanan]

After my experience with Commissioner Timmermans, I do not think I am going to get into “Dad’s Army” analogies any further. We want to get Brexit done by 31 October. We have spoken about these issues and debated them endlessly and it really is time to get on with it.

Challenges to Validity of EU Instruments (EU Exit) Regulations 2019

Lord Beith Excerpts

Thursday 14th March 2019 Lords Chamber

I hope that noble Lords will therefore agree that these regulations are extremely important in making sure that courts in the UK can continue to deliver justice effectively once we leave the European Union and, as such, are a vital part of the Government’s preparations for leaving the EU. I beg to move.

[Lord Beith (LD)]

My Lords, I am grateful to the Minister for his careful exposition of the statutory instrument, and for the engagement of officials with the Constitution Committee and others. This is at the more microscopic end of looking at EU matters compared with what is going on at the other end of the building, but it is nevertheless important.

My concern with the SI and that of the Constitution Committee goes back to proceedings on paragraph 1 of Schedule 1 to the withdrawal Act, which prohibits challenges to the validity of retained European law on the basis that it was invalid immediately before exit day, unless the challenge was of a kind provided for in regulations to be made by a Minister of the Crown. That is what we are discussing. No draft of the regulations was made available when we were considering the Bill. The possibility arose that such a regulation might be selective and subjective in the type or subject matter of case permitted. Indeed, Ministers seem to be envisaging such selectivity, as I shall illustrate.

The background is that our constitutional system does not provide for courts to strike down laws on the basis that they are invalid. Parliament’s word, when set out in statute, is law. The Human Rights Act allows for statute law to be challenged and that challenge is posed to Parliament, but it does not strike down the law that it challenges. Neither I nor the Constitution Committee wanted to change the situation, but European law can be struck down for invalidity by the CJEU, as the Minister made clear, so what about retained European law after exit?

The Government originally took the view that they needed to retain the possibility of challenge and striking down. The noble and learned Lord, Lord Keen of Elie, the Advocate-General, said in this Chamber:

“Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument … and should have a right to challenge it”.—[Official Report, 23/4/18; col. 1374.]


But in what circumstances, and how do you devise a statutory instrument that allows for some challenges but not others? Does this not set a dangerous precedent? Such an instrument might be hybrid, in which case you might think we would be protected from misuse by our special procedures for hybrid instruments, but not so, because provisions in paragraph 36 of Schedule 7 to the withdrawal Act allow hybrid instruments under that Act to proceed as if they were not hybrid.

No draft of the SI was produced, but we had discussions in this Chamber and I had an exchange of letters with the Solicitor-General, who was very helpful. A short consultation was arranged that enabled issues to be clarified. I appreciate that as well. My concern about selective and discriminatory use of the power to make such regulations was largely allayed by the very firm statement of the Government’s intent, and the statutory instrument we have before us is general in character and confined in purpose to pending cases. At one or two points where the Minister was explaining how it would work in those cases, the House perhaps needed reminding that only in pending cases would the opportunity arise to make that challenge. These are cases entered upon before exit day and not concluded.

But we now have a statutory instrument that is so limited in its scope that if the CJEU after exit day finds a pre-exit provision of EU law to have been invalid, it will cease to be EU law in the EU but it will continue to be on our statute book. It will still be in force as retained European law, despite the fact that, as explained in paragraph 2.4 of the Explanatory Memorandum accompanying the SI, if the CJEU has declared the law to be invalid,

“it is as if the law in question never existed”.

I agree with that. In my view, it therefore follows that it could not have been validly transferred into UK law on exit day. It did not exist and it could not be transferred. It was not valid and it is immaterial that we did not know that at the time. This would be an absurd situation. It could have the practical consequence that a UK business that had been penalised or disadvantaged by the application of a law that had been struck down would have no legal recourse to challenge its consequences, while EU businesses were successfully challenging it within the EU.

The Government, in correspondence with the Constitution Committee, have offered several answers to this problem. The first was that there will be very few such cases, if any, so in their view any solutions to the problem would risk being disproportionate. I do not buy that. Our job is to get the law right, not knowingly to create flaws that do not worry us because we think that not many people will be affected.

The Government’s second argument is that, in this as in other situations, if Parliament wants to change the law it of course can. It could take this course if problems arose because invalid EU law was still in force in the UK. When such a case came before the courts, it would be difficult to deal with the adverse effects experienced by an individual or business without resorting to retrospective and possibly hybrid legislation—not a course to be encouraged.

The Government’s third argument is much more complex and has been questioned by eminent public law specialists. Government lawyers believe that Section 6(3) of the EU withdrawal Act 2018 means that any post-exit CJEU ruling on the validity of EU law cannot affect its UK version in the form of retained European law because, under Section 6(3)(b) the courts must have,

“regard (among other things) to the limits, immediately before exit day, of EU competences”.

Under Section 6(3)(a) the court must decide the question in accordance with retained EU case law—that is, pre-exit case law. The court would be precluded from considering any post-exit case law and therefore, obviously, a declaration of invalidity. This seems to negate the purpose of Section 6(2), which permits the court,

“to have regard to anything done on or after exit day by the European Court … so far as it is relevant to any matter before the court or tribunal”.

I ask the Minister: what is the point of the permission in Section 6(2) to have regard to CJEU post-exit case law when it is subject to the requirement in Section 6(3)(b) that it must take account of the clear limits of EU competence after exit day? It is important because the Government’s view is that the scope of this statutory instrument cannot be widened in the way I suggest it should be because of that interpretation of Section 6.

This leads me to ask: why do the Government want to rule out the obviously desirable removal from effective UK law of retained EU law provisions whose parent provisions are found by the CJEU to have been invalid in the first place? Why would they want to keep that in UK law? A law that cannot have validly existed but remains in force is a new concept for me. Maybe it is because the Government get very hung up about the European Court of Justice and insisting that it will not have jurisdiction after exit day. What we are talking about is simply allowing UK courts to have regard to any case law subsequently developed by the European Court of Justice.

My last question has been answered, but I would like the Minister to emphasise the answer. This statutory instrument comes into force on 29 March, unless exit day is changed by another statutory instrument. However, in the event of an agreement, do the Government intend to use the withdrawal agreement Bill to suspend the operation of this statutory instrument until the end of the implementation period? I assume the answer is yes, but it would be helpful to have it on the record.

Brexit: Statutory Instruments

Lord Beith Excerpts

Thursday 10th January 2019 Lords Chamber

Asked by

[Lord Beith]

To ask Her Majesty’s Government what assessment they have made of the parliamentary time required for the consideration and approval of statutory instruments arising from the United Kingdom’s withdrawal from the European Union.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, the Government have a full understanding of the time required for the consideration and approval of EU exit-related statutory instruments. We remain confident that all EU exit-related SIs required to ensure a functioning statute book will be brought forward in good time for exit day and with the appropriate scrutiny.

[Lord Beith (LD)]

My Lords, that is not very informative. In broad terms, there are at least 200 statutory instruments—new laws—under scrutiny and at least 300 still to be brought forward. More will arise, either from a withdrawal agreement Bill or a Bill to cope with the consequences of no deal. Does the Minister recognise that, even if this House devoted eight hours every working day up to 29 March to these new laws, they would not get an hour’s consideration each? Can he guarantee that the Government will not resort to emergency powers enabling them to legislate without prior parliamentary approval? If there is an emergency, it is one of the Government’s own making. Does he not see that this situation is making a mockery of the idea that we are bringing back control of our own laws?

[Lord Callanan]

As I said, we remain confident that we will be able to deliver the programme in time. We do not expect to have to use the urgent procedure under the European Union (Withdrawal) Act 2018, but we cannot rule anything out at this stage. We have no expectation of having to do so.

Brexit: Negotiations and No-deal Contingency Planning

Lord Beith Excerpts

Tuesday 4th September 2018 Lords Chamber

[Lord Callanan]

The Prime Minister has made it clear on a number of occasions that EU citizens who have chosen to make their homes in the UK are welcome to stay. We have protected their rights, and the rights of British citizens abroad in the draft withdrawal agreement. If there is no withdrawal agreement, we will want to move swiftly to guarantee the rights of those people. We may not want to do it in exactly the same way as set out in the withdrawal agreement at the moment, but we would want to guarantee their rights and emphasise the fact that they have made their home here and are welcome to stay. The Prime Minister has made that very clear.

[Lord Beith (LD)]

My Lords, does the Minister not recognise that we will not know until perhaps a few weeks, or even days, before the exit date whether a deal has been agreed or it is a no-deal exit? In that case, is his advice to organisations and companies to behave as if there is to be a no deal from now on, and prepare themselves accordingly? Conversely, if there is a withdrawal deal, how does the Minister expect both Houses of Parliament to legislate it into effect in the few days that may lie between it being agreed and the exit date of March next year?

[Lord Callanan]

If it were only a few days, clearly the noble Lord would be correct that it would be impossible. The need for appropriate legislative scrutiny in both Houses is one of the reasons why we are still targeting an agreement in October this year. We are working towards that. It may not be possible, and I cannot absolutely guarantee that, but we are mindful of the fact that once we have negotiated a withdrawal agreement, there needs to be a meaningful vote, which we have promised, both politically and now legislatively. We will put it to the vote in both Houses, and if the meaningful vote goes through, we will have to legislate, which will take time. That is one of the reasons, and the EU has agreed with us, that we are approaching the end state of negotiations now. We need to have an agreement in the not-too-distant future.

Brexit: Legislating for the Withdrawal Agreement

Lord Beith Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, I remind the Minister that paragraphs 78, 79 and 80 make it absolutely clear that the jurisdiction of the Court of Justice of the European Union remains throughout the implementation period and that the UK Government can, as if the UK were a member state, take cases to that court should they find that there is a reason to do so. This is a welcome example of having your cake and eating it.

Can the Minister give a guarantee that the necessary domestic legislation which will be required to preserve the rights and entitlements of the Norwegian community in Britain will be in place so that there will be no break or discontinuity for that important group who contribute to our economy?

[Lord Callanan]

Yes, I can confirm what the noble Lord said about the European Court of Justice. With regard to the Norwegian community, we are currently in negotiations with EEA member states and hope to reach an agreement on citizens’ rights similar to that which we have agreed with the EU.

European Union (Withdrawal) Bill

Lord Beith Excerpts

Monday 18th June 2018 Lords Chamber

Motion D1 not moved.

[Lord Beith (LD)]

My Lords, in the same spirit, I thank the Minister for the full and careful explanation he has given today and thank him and the Solicitor-General for their assistance in going into this carefully. My concern was about setting up the Government and Ministers as gatekeepers to the court room without any clear principles or certainty about whether there would be regulations. We now have on the record a much clearer indication of how these powers might be used. That is not perfect but it is a distinct improvement on where we were and I do not intend to press my amendment in that circumstance.

[Baroness Ludford (LD)]

My Lords, I hope the Government will keep an open mind in the future about the charter in the terms in which the Motion of the noble Lord, Lord Pannick, was framed—that is, as a guide to interpretation of retained EU law. While the noble and learned Lord, Lord Keen of Elie, said that most of the charter rights are found in other sources of law, not all of them are. This may prove to be an issue in the Brexit negotiations, which is why I hope that the Government might have cause and justification to revisit it.

I suggest that in the context of security co-operation and data transfers for the tech industry, this may be a factor in the extent and scope of our co-operation with the European Union in the future. I therefore make a plea that the Government do not totally close their mind to the EU Charter of Fundamental Rights as a guide to interpretation because I think that could be well received by those whom we have to persuade on the scope of co-operation.

European Union (Withdrawal) Bill

Lord Beith Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Framlingham]

With the leave of the House, may I ask a question?

[Noble Lords]

Yes.

[Lord Framlingham]

Does the noble Baroness accept that nobody is keener on the environment than me, as many people in this House know? I am simply saying that this is not the vehicle for it.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, Amendment 7 is in my name and in the names of three other members of your Lordships’ Constitution Committee: our chairman, the noble Baroness, Lady Taylor of Bolton, and the noble Lords, Lord Norton of Louth and Lord Beith.

The amendment addresses a difficult issue. In its report HL69, dated 29 January of this year, the Constitution Committee drew attention in paragraph 51 to what we saw as a defect in the Bill: it does not specify the legal status that would be enjoyed in our law by retained EU law—that is, the body of EU material that the Bill incorporates into domestic law as at exit day. The question is: is it going to be primary legislation, secondary legislation or something else? And if something else, what?

The Bill deals with this question in part, for the purposes of the Human Rights Act, in what is now paragraph 28 of Schedule 8. But that exception simply begs the question as to what status retained EU law enjoys for other legal purposes. The recommendation made by the Constitution Committee that the issue needs to be addressed in the Bill was widely approved by expert legal opinion, in particular the Bingham Centre for the Rule of Law and Professor Paul Craig of Oxford University, although they disagreed with the suggestion by the committee that the status of all retained EU law should be that of primary legislation.

Ministers agreed to consider this issue and tabled an amendment on Report to introduce what is now Clause 8 of the Bill. Clause 8 is an improvement because it makes two points clear. It states that the part of retained EU law which derives from earlier statutes and earlier statutory instruments, enacted to implement EU law obligations, will retain the legal status it previously had—either primary legislation or secondary legislation. Clause 8 also addresses the circumstances in which different types of retained EU law can be amended.

However, what Clause 8 does not do is address the legal status of other retained EU law for purposes other than amendment. This may matter, as the Bingham Centre has suggested, for example, in deciding which rule takes priority if there is a conflict between different elements of retained EU law, or if the question arises of when courts may allow a challenge to retained EU law and what remedies they may give. Some distinguished legal scholars have expressed such concerns about Clause 8, particularly Professor Alison Young of Cambridge University.

The Minister made it clear on Report that because of the complexity of the issue, the Government were willing to consider the matter further at Third Reading. This amendment suggests addressing the issue of legal status by using the distinction that is in Clause 8 itself —between retained direct principal EU legislation and retained direct minor EU legislation.

I am grateful to the Minister for arranging a meeting for me yesterday with members of the Bill team and parliamentary draftsmen. They explained their concerns about the amendment. They have persuaded me that the contents of the Bill will minimise the occasions on which the legal status of retained EU law will matter. They have also pointed out that the amendment would need to specify more clearly what is meant by “primary legislation”, which covers not just Acts of Parliament but Acts of the three devolved legislatures. They also tell me that they are concerned about the generality of a deeming provision of this sort, which might cause difficulties in other contexts.

I have found these arguments compelling and I would be grateful, and I hope the House would be grateful, if the Minister would say a little more about these points when he replies to the debate. I am, however, concerned that it still appears to be the Government’s position that if any of these problems about legal status do arise in the future, they can be addressed by Ministers exercising delegated powers under the Bill. I remind the House that the Constitution Committee said in our report at paragraph 69:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


I ask the Minister to tell the House whether or not the Government agree with that proposition.

I will add one further point—as a promise, not as a threat—which is that the Constitution Committee intends to keep a very close eye on this issue once the Bill becomes law. If it does become necessary to give particular retained EU laws a legal status, and if this is then done by Ministers exercising delegated powers, your Lordships’ Constitution Committee will certainly wish to return to the issue. I beg to move.

[Lord Beith (LD)]

My Lords, I will not add to the exposition of the amendment and the reasons for tabling it, which have been so clearly set out by the noble Lord, Lord Pannick. The committee felt that we ought to see whether we could get a more secure place for retained European law in the hierarchy of law as it would be viewed by the courts in this country. There will probably be difficulties in this area and we are probably persuaded that they cannot be resolved by the kind of declaratory amendment that we have tabled on this occasion.

There are further difficulties which the Minister might refer to, which have been pointed out by Professor Alison Young, who was referred to earlier. For example, constitutional statutes are not subject to the doctrine of implied repeal in the same way as other legislation. What will be the position if an item of retained European law is considered to be constitutional in character and appears to be in conflict with subsequent legislation passed post exit day, when the supremacy principle has fallen away and this has to be resolved?

In passing an earlier amendment which removed a discretionary power from Ministers to, in effect, decide whether matters could be put before the courts, we wanted to assert that, wherever possible, we should protect the courts and the legal system from having to be the subject of individual ad hoc ministerial decisions in particular cases. That was part of the motivation for what the committee sought to do in this case. But clearly it cannot be solved in the way that we first suggested.

[Lord Mackay of Clashfern]

My Lords, this is an important question. It is just possible that Clause 8 could be used by the courts in a situation arising under this particular amendment to extend the provisions of Clause 8 by analogy, where that seemed suitable. As the noble Lord, Lord Pannick, mentioned, fitting this to everything is quite difficult. On the other hand, for a court faced with a single problem, this way of solving it might be possible. Anyway, I am entirely in support of what the noble Lord, Lord Pannick, said about Ministers determining this sort of matter; I do not believe that that can be right. However, I do not think the court would fail, if faced with this problem, in deciding something about it.