European Union (Withdrawal Agreement) Bill

Lord Howarth of Newport Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Howarth of Newport (Lab)]

My Lords, the noble and learned Lord has made an obviously reasonable and appropriate case for the propriety of the Government consulting with Ministers in the devolved Assemblies. That is not only good politics, it is good manners, and I hope that the noble and learned Lord who will be replying on behalf of the Government will readily accept that that is appropriate. I hope, therefore, that he will be willing to accept Amendment 23.

Amendment 45 is an amendment to a clause that is in any case otiose, so I do not think it is necessary for the Government to accept it, but again I hope that the Minister will affirm that of course the Government will want to follow the usual conventions and established procedures for legislative consent.

[Baroness Finlay of Llandaff (CB)]

My Lords, I wish to speak to three of the amendments in this group. Yesterday I spoke in support of Amendment 15, and those remarks are relevant to Amendment 18 so I will not repeat them. It is important to ensure that our concerns about the Bill are recognised. One is that, as currently written, the Bill can be interpreted as not respecting the union, which becomes extremely important constitutionally.

Amendment 23 relates to Clause 26 and the potential role of the courts, other than the Supreme Court, in the future. The difficulty arises in having due regard to the devolved Administrations, as my noble and learned friend Lord Thomas of Cwmgiedd has outlined. Legislation that has already been passed by the Senedd, the Welsh Assembly Government, reflects European rulings. If those rulings are changed in the future, the Assembly will have to address the changes. The difficulty, of course, is that if it has not been consulted on all the changes to the way appeals can be made, it could find itself in an extremely difficult position.

This amendment, like the others that we have tabled, is therefore designed to prevent avoidable problems emerging in the future. I cannot see that anything in our amendments would undermine the Government’s ability to move forward with their withdrawal Bill, but they would make sure that the legislative powers already held by the Senedd and the Welsh Government are respected.

Our amendment to Clause 38 is necessary because, as written, it fails to refer to the Sewel convention and therefore risks undermining the devolution settlements. If the Government do not wish to accept the amendment, one could suggest another way forward by deleting the entire clause, although I suspect that they are less minded to do that than to insert something short to respect the devolved settlements.

I also signal my support for Amendment 29 in the group, because again it aims to safeguard the devolution settlements from unilateral amendment by Ministers of the Crown. Although the conduct of international negotiations is a reserved matter, which everyone respects, the amendment would ensure that the impact on the devolution settlements are recognised and would give the devolved institutions the responsibility to make arrangements to implement international agreements as they go forward.

Essentially, we are asking to be consulted and to be kept in the loop. We are not asking for a veto, but our amendments ask for the devolution settlement to be respected, as it works at the moment with an intact union.

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[Lord Howarth of Newport]

My Lords, I also serve on the Constitution Committee and share the concerns expressed by my noble friend Lady Taylor and the noble Lord, Lord Beith. The relationship between the Executive, the judiciary and the legislature is a matter of some current controversy. The Executive have been stunned by the judgment made in the Supreme Court in the autumn, and I suspect that in part we are seeing a somewhat petulant response to that circumstance.

At all events, what is proposed in this legislation is a gross intrusion by the Executive into the proper realm of the judiciary. The Executive complain that the judiciary has extended itself excessively into its role; we are now seeing a retaliation on a major scale. Whatever practical motivation otherwise that may have caused the Government to write new subsection (5A)(b) into this clause, it is a foolish initiative on the part of the Government.

This is territory in which the Government ought to walk delicately, like Agag. It sets an appalling precedent, and it intrudes into the proper role of Parliament, because it is not appropriate. Even if it were appropriate for Ministers to interfere at all in this realm of judicial discretion, it is not appropriate for Ministers to do it by regulation. Such decisions ought to be made by Parliament in primary law, ensuring that the sort of very important principles which the noble Lord, Lord Anderson of Ipswich, has suggested might be interfered with by Ministers under the terms of this legislation cannot be dealt with in this kind of way.

[Baroness Deech (CB)]

My Lords, I am puzzled by some of the issues that have been raised by this amendment. First, only a year or two ago, the noble and learned Lord, Lord Neuberger, then president, called for Parliament to tell our judges clearly how rulings of the CJEU are to be dealt with after Brexit. Apparently our noble and learned friend did not see any difficulty about that.

Secondly, to tell courts that they are not bound by something does not mean that they will not follow it. If they are not bound, they may well still choose to follow it if they think it is good law. There are indeed many instances where the Court of Justice of the European Union has not produced good law: for example, over the secret nature of MEPs' expenses, on genetically modified crops and on diplomatic immunity. This is not surprising, because it is a court very unlike our own type of court. Its judges are nominated by sending countries for six years—they have only a six-year tenure. They have enormous salaries and expenses, and I am sure that they are reluctant to lose them after six years, and anxious to be renominated.

There are of course no dissenting judgments. Many of the so-called judges are not judges at all. They have been professors—obviously, I have great admiration for professors—and civil servants, with of course the exception of the British judge. So I am a little sceptical about this court. I think people sometimes confuse it with the European Court of Human Rights. We hear much talk that, if we depart from the rulings of the CJEU, our human rights will be affected. That is not the issue today.

I ask those who put forward this amendment what they mean, or envisage, by binding and not following, and why they think it would be better for citizens to have to go all the way to to the Supreme Court, with all the delay and expense—and lots of nice jobs for lawyers—that will be involved if you can only get a diversion from EU law by going all the way to the Supreme Court.

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[Lord Keen of Elie]

As the noble Lord is aware, there is a level of courts, for example the Sheriff’s Court in Scotland, which is not bound by each other’s judgments, and therefore at that level one could arrive at inconsistency of decision-making, and we are conscious of that. The question is where we should best place the determination, and the whole point of this clause is to allow for the flexibility that is required, upon consultation with the appropriate parties, to determine how we can best achieve the outcome that everyone seeks. I am not in a position to say that it will be just the Supreme Court, as it is under Section 6, or to say that it will be just the Supreme Court and the Court of Appeal. However, one can see a rationale behind the approaches, both of which have been supported by various noble and learned Lords in the course of this debate. What we want to be able to do is to resolve that debate and achieve a consensus that will bring about the best result for the law of the United Kingdom, given its different legal systems. What we are seeking in the end is certainty for those who seek to litigate in our courts, and we would achieve that by coming to a consensus on how we should look at EU case law going forward.

I cannot accept the amendment and at this time I would urge the noble Lord to withdraw it.

[Lord Howarth of Newport]

How does the Minister defend—if he conceivably can—the violation of the principle of separation of powers embodied in this clause?

[Lord Keen of Elie]

I do not consider that this clause in any sense violates the principle of the separation of powers.