European Union (Withdrawal) Bill

Debate between Lord Beith and Lord Goldsmith

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, I am glad to be associated with the noble Lord, Lord Pannick, in supporting this amendment to seek some clarity. I will simply add two further points, having said that this distinctly lacks clarity at the moment.

First, I draw attention to paragraph 3, which says:

“Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction”.


A little gloss on that from the Minister would be helpful. The second thing that needs clarifying is the impact on the devolution aspects of the Bill. The Government’s Explanatory Notes say that,

“in relation to the devolved administrations these pre-existing powers”—

that is, the powers that can be used under the clause we are discussing—

“are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence”.

I imagine that the noble and learned Lord, Lord Hope, pricked up his ears at that phrase, because it goes to the heart of the argument we have been having about the impact of the Bill on devolution and the idea that powers will be released to the devolved Administrations only once the UK Government are satisfied with the way they will deal with the framework provisions. The appearance of the phrase,

“until the relevant subject matters are released from the interim limit on their competence”,

in the Explanatory Notes is quite worrying. The provisions are of course there because some of the provisions here relate to existing devolved powers. The devolved Administrations must have the capacity to take this kind of action if the UK Government have the capacity to do so. However, it is subject to this rather extraordinary restriction: the Government hold on to the powers until they are satisfied that they can be released. For the benefit of clarity, I hope that the Minister can help us.

[Lord Goldsmith]

My Lords, I support the amendment. There is not much to add to what the noble Lord, Lord Pannick, said about what the amendment does and why it is necessary, nor to add to the questions he asked or to those then added by the noble Lord, Lord Beith, which in particular picked up issues with regard to the devolved Administrations.

We know that a major theme in your Lordships’ House, rightly, has been how powers are to be exercised, recognising that there may be circumstances in which they have to be exercised. Notwithstanding that, on the whole this Committee has rightly taken the view—or we hope that we will see it take the view, certainly from the interventions and contributions that have been made throughout the Committee—that this is a matter where proper parliamentary scrutiny is required. There may well be a role for certain delegated legislation, but please let us not add to it with still yet another way in which things can be done which avoid that full parliamentary scrutiny.

I hope that the Minister, when he responds, will be able to say something reassuring, both answering the questions posed by the noble Lords, Lord Pannick and Lord Beith, and saying why we need not be concerned and that the Government will content themselves with relying on those delegated powers that will be specific to the Bill, once this Committee and the other place have determined just what those delegated powers should be.

[Lord Keen of Elie]

I am obliged to noble Lords. I begin by making two observations. These amendments are linked closely to the issue we have already debated in Committee of the status of retained EU law and how we deal with it in the context of its status. As has been indicated previously in Committee, the Government have been listening and considering that, and we intend to come back to the House on the matter before Report. I mention that because it is a relevant backdrop to what we are considering at this stage.

On the points raised by the noble Lord, Lord Beith, essentially, the powers in paragraph 3 of Schedule 8 are, first of all, designed to remove what I might term the shadow of European law from what will be domestic legislation. However, more particularly, the noble Lord raised a point about the devolution issues and quoted from the Explanatory Notes. I understand that the section of the Explanatory Notes that he refers to addresses Clause 11 prior to its recent amendment. I appreciate that we then withdrew that amendment, but the Explanatory Notes should be read in that context. Essentially, therefore, we have moved on because of the decision to flip Clause 11—I think that was the term used—so I ask the noble Lord to look at the proposed amendment to Clause 11 to understand the context in which we now want to deal with this point.