European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am happy to follow the noble Baroness, Lady Thornton, particularly as on this occasion she has said nothing to make me change my speech. I remain a remainer but, for the purposes of this Bill, regard that as a complete irrelevance. As many have said, this is a necessary continuity Bill to transpose EU law, which represents a large part of our existing law, into UK law when we repeal the 1972 Act. In short, it will avoid a huge legal vacuum if and when we leave the EU.

That said, save in one eventuality only, the entirety of this Bill could and in some ways—pace the noble Lord, Lord Wilson of Dinton—should more appropriately be dealt with not here but in the next Bill. The withdrawal agreement and implementation Bill will come along later in the year when, one hopes, we will know—at least to the extent of heads of agreement—the basis on which we are leaving. The one eventuality in which this Bill truly would be crucial would be if—one hopes it is a remote “if”—the Government at some point abandoned negotiations for an agreed withdrawal and we simply crashed out of the EU on exit day. Then indeed, with no prospect of a later Bill, a continuity Bill to keep our laws intact would be required. That eventuality apart, why can all these provisions, as to what should be retained law and our future approach to it, not be part of the implementation Bill?

In all probability, we will initially leave by a transition, implementation or standstill period—call it what you will. During this period, we will continue to recognise the jurisdiction and jurisprudence of the CJEU. Given that, surely the point at which EU law will be frozen and, as retained law, become part of UK law will be at the end, not the beginning, of that transitional period. Clauses 2 and 3, which in effect freeze EU law as at exit day, will have to be amended, presumably by the implementation Bill itself rather than by any of the highly contentious regulation-making powers in this Bill, most notably Clause 9(2).

Incidentally on the question of the Bill’s regulation-making powers, not only do Henry VIII powers—executive powers to repeal or amend primary legislation —need to be curbed; so too we should place controls on the Executive’s power by secondary legislation, which is generally unamendable and not that closely scrutinised, to implement policy decisions that are more properly the subject of primary legislation.

That takes me to the Constitution Committee’s recommendation in yesterday’s report that “retained direct EU law” should have the legal status of “domestic primary legislation”. That is a most interesting recommendation. Instinctively I am inclined to agree, in so far as it would prevent retained law being changed merely by executive regulation by secondary legislation. However, I am less convinced that retained law should not be subject to the Supreme Court, as proposed under Clause 6(4)(a) and 6(5), being able to depart from it as it can from its own or previous House of Lords decisions under what lawyers know as the 1966 Practice Statement—exceptionally and only for compelling reasons. That is essentially the test now proposed in the Bill.

I have a final word or two about the Charter of Fundamental Rights being disapplied by Clause 5(4). I see no good reason to retain the charter. We are of course retaining the Human Rights Act and our full acceptance of the reach of the European Convention on Human Rights. The convention and the Supreme Court’s ever-growing readiness to invoke our own historic common law, as necessary, fully meet our human rights requirements. It is true, as the noble Baroness, Lady Smith of Basildon, pointed out in her speech, that David Davis himself invoked the charter last year when making his complaint against the UK about investigatory powers, but all that is now expressly taken care of in the Data Protection Bill that we have just passed on.

The charter, I suggest, would needlessly complicate things to no good purpose. It is, at best, of uncertain reach, applying as it does only to the implementation of EU law, which is, of course, to become a past concept. The present criteria for deciding the scope of EU law is already described as “incredibly ambiguous”. The charter, of course, consists both of rights, essentially mirroring ECHR and other international law rights, and of principles. The latter are mostly social and economic, are really aspirational and without direct effect. In short, I accept the Government’s arguments on the charter, but clearly there are aspects of the Bill that will need amendment and we look forward to 10 busy days to deal with those.