Private International Law (Implementation of Agreements) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Adonis

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Adonis (Lab)]

I have an obvious question relating to what the noble and learned Lord said. Why does he think that the Isle of Man wants this power but other Crown dependencies do not?

[Lord Mackay of Clashfern (Con)]

My Lords, I have always understood that the Isle of Man is different and that special provision therefore needs to be made for it, particularly at its request. Long ago, when I was Lord Advocate, I was called to defend an action of the UK Government, which had imposed restrictions on fishing in the waters surrounding the Isle of Man that were different from the common fisheries policy. I was constrained to argue that the Isle of Man was not subject to the common fisheries policy, since it was different from the United Kingdom. I regret to say that the Isle of Man was not sufficiently different for me to succeed.

I support the amendment as something that is utterly important for the Isle of Man and perfectly in order.

Merchant Shipping (Marine Equipment) (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Mackay of Clashfern and Lord Adonis

Wednesday 20th February 2019 Lords Chamber

[Lord Adonis]

My Lords, I am very grateful to the Minister for her rapid-fire introduction. I hope she will not mind me saying that the only thing that she said which I welcome is that there will be a plain English marine information note. She said that this would be for foreign ship owners, but may I suggest that she also circulates it to Members of your Lordships’ House, because we might find the plain English version a great deal more comprehensible than these regulations.

No one can doubt the importance of the issues that we are talking about, even at this late hour—although the noble Lord, Lord Grade, may think it superfluous for us to pay any attention to them at all because it is keeping him from his dinner. We are talking about life-saving appliances, firefighting equipment, navigation equipment, pollution prevention and reduction equipment and so on—literally life and death equipment in respect of ships and the operation of a safe marine industry. So it is important that we get this right, and the noble Baroness and her department are doing their level best to do so.

I have a question and a comment. The noble Baroness may have answered the question, but I need to be clear that I fully understand it so that people reading the account of our debate fully understand it. The big question is what is meant by “choice” in paragraph 7.2 of the Explanatory Memorandum, which says:

“Under these Regulations, UK ships will have the choice of two types of approved marine equipment: (i) equipment which has EU approval … or (ii) equipment which has been approved under the UK system which these Regulations establish”.


When I read that, it worried me, because the choice might mean that you have a confused situation where operators could potentially opt for the less demanding standards in respect of this equipment, as our standards diverge over time. That is not a situation, I think, that the House would welcome—let alone our EU partners, who might then raise some serious questions about trade between our countries.

I need to explain what I think is the situation for the Minister to tell me whether I am correct. There is not in fact a choice. The actual situation is that ship owners that are operating on exit day and that have EU equipment can simply continue operating with EU equipment without any end date. But what is the situation for new ships—or is it new equipment on ships? I am already reaching an issue that it is important to clarify. Is it new equipment that can meet UK standards rather than EU standards, or is it just new ships? I would welcome a clarification of what the actual regime is. If I have got it correct, the issue is not that they have a choice but that equipment and/or ships procured after exit day can observe new UK standards, insofar as they diverge from EU standards—one would hope that they do not diverge, or we could get a gaming situation in respect of different standards.

Simply in seeking to explain this to the House, I have already noticed one issue: namely, can ships that are in operation on exit day which have existing EU-approved equipment replace that equipment to the previous EU standard, or will they be required to have equipment of the new UK standard? Or does the new UK standard requirement apply only to completely new ships? I am not a shipping industry expert, but I imagine that a lot of this safety equipment goes together and that mixing and matching to different standards would not be a good thing. I would be grateful if the noble Baroness would confirm that the actual situation is that there is not actually a choice but that it is a question of dates.

I shall make a point that I make all the time—it does not become a less significant point just because this is about the 100th time I have made it—that, given the issues at stake here, there should clearly have been consultation with the industry. There has not been consultation, but we get a new formulation for the lack of consultation in each of the regulations. Sometimes it is “focused stakeholder engagement” and sometimes it is “trusted stakeholders”. In the Explanatory Memorandum of this one we are simply told, at paragraph 10.1:

“The marine equipment industry has been informed of the Department’s intention”.


That is all it says, and then it says that thereafter there has been “informal engagement”. There is not even a pretence of consultation in this regulation. The industry has simply been informed.

As for safety standards, of course it is the job of the Government and Parliament to set those safety standards. My concern is that they will not be in any way diminished and that there is nothing in these regulations—and in particular the prospect of UK regulations diverging from existing EU regulations—that could lead anyone to expect that they will be diminished over time.

[Lord Mackay of Clashfern (Con)]

My Lords, this amendment is dependent on the requirement of consultation and a document setting out the effect of the regulations. As far as I know, there is no requirement for either of these in any of the empowering statutory provisions. Therefore, this is by no means a basis for the amendment that the noble Lord, Lord Adonis, has signified. As I understand it, what is happening is that the regulations, which previously were all European regulations, will continue to apply in the same form, but with the expression of these regulations in the UK area of shipping.

Perhaps I should mention that I am an Elder Brother of Trinity House: what effect that has on this, I am not sure, but I will mention it just to be certain. I am certainly concerned with the safety of shipping and I believe that the instrument is, too, in that it preserves the existing standard of safety, both in Europe and when it passes from Europe to us here. It is the same standard and I cannot for the life of me see any reasonable basis on which this regulation could be set aside. It would be a drastic thing to set it aside and I ask the same question that I asked the last time I spoke on something like this: has the noble Lord, Lord Adonis, asked anybody who is affected by this whether they would like this regulation to be set aside?

Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019

Debate between Lord Mackay of Clashfern and Lord Adonis

Monday 18th February 2019 Lords Chamber

[Lord Adonis]

My Lords, I shall not press the amendment. I am extremely grateful to, and flattered by, the compliment paid by the noble and learned Lord, Lord Mackay. He said that he does not understand my opposition to these regulations, but he will appreciate that there is no way in which I could conceive of being a Minister proposing to put arrangements in place for a no-deal Brexit. I would regard that as a fundamental betrayal of the national interest. Therefore, if he accepts as a premise that the whole activity that the state is engaged in at the moment is, in my view, fundamentally illegitimate, he might accept that the course that I am pursuing is at least logical.

[Lord Mackay of Clashfern]

Perhaps I should respond by saying that I did understand that. Fundamentally, the noble Lord, Lord Adonis, believes that his wisdom is superior to that of the 17 million who voted the other way.

[Lord Adonis]

And I am very anxious that they should have an opportunity to cast their vote on the deal which they can now see but which they did not know about three years ago because it did not exist. I am fairly confident that if the electorate of this country had any idea that three years ago they might have been putting in place arrangements for a no-deal Brexit, they would not have gone anywhere remotely close to the situation that we have today. However, on that note, I beg leave to withdraw.

Northern Ireland (Executive Formation and Exercise of Functions) Bill

Debate between Lord Mackay of Clashfern and Lord Adonis

Committee: 1st sitting (Hansard): House of Lords
Tuesday 30th October 2018 Lords Chamber

[Lord Adonis]

My Lords, my response to the noble Lord, Lord Alton, is that of course the devolved institutions are not even sitting in Northern Ireland at the moment, so we face two issues in this respect. The first is that the Northern Ireland Assembly should be given an opportunity to address this matter. Clearly, it does not have that opportunity at the moment because it is not sitting. The Bill seeks to ensure that the Northern Ireland Assembly does sit and is sustaining an Executive by the end of next March. The second point concerns the situation if the Assembly is not, even when it is sitting, able to address this issue, I do not believe it is consistent with the poll that the noble Lord has just cited that the people of Northern Ireland would regard it as satisfactory for the Assembly in Northern Ireland not to address this issue of fundamental rights. One way or another, in a short time, this issue must be resolved. It will not be satisfactory either for the Assembly in Northern Ireland to fail to address this issue or for this Parliament to allow fundamental breaches of civil rights to take place in a substantial part of the United Kingdom. I beg to move.

[Lord Mackay of Clashfern (Con)]

My Lords, my Amendment 16 has the honour to be joined to the two amendments of the noble Lord, Lord Adonis, Amendments 10 and 11. It seems to me that Amendment 10 breaches a fundamental aspect of the constitution, namely that it is not right for anyone not connected with the prosecution to intervene to alter or to direct a prosecution decision. That is what Amendment 10 does. Amendment 11 again breaches the constitutional rule that our judiciary is not to be directed by departmental guidance. The Secretary of State for Northern Ireland has no authority whatever to direct the prosecuting authorities in Northern Ireland not to prosecute existing statutory provisions there, and certainly no authority to order the judiciary in Northern Ireland not to obey a part of the rule that is there already.

Amendment 16, which was passed in the House of Commons, is intended to deal with both matters as the noble Lord, Lord Adonis, has explained them. It seeks to get the Secretary of State to issue guidance, which will have effect as they wish, but the amendment is so drawn that it does not specify that the guidance has to be of a particular kind. It is obvious from the way it was introduced in the Commons that that is what they would like to see, but the amendment does not require the Secretary of State to do anything that is unconstitutional or wrong. That is why, as far as I am concerned, I shall not press the amendment. It is a matter that was decided on a free vote, on the issue of abortion—which is always subject to a free vote in both Houses of Parliament—and therefore I shall not press it to a Division. However, I thought it might be necessary to have further discussion on it. Having regard to the amount of discussion that took place at Second Reading, it may not be necessary to do more than introduce it and see whether anybody wants to speak.

As for the first two amendments, in the name of the noble Lord, Lord Adonis, these are quite unconstitutional. Indeed, the first, on interference in a prosecution, was a constitutional disaster in, I think, the 1920s, and as a result the constitution of the United Kingdom has not had the law officers be part of the Cabinet ever since. Decisions about prosecution are not Cabinet decisions; they are the responsibility of the law officers. In Northern Ireland, in the present situation, the Director of Public Prosecutions is the authority. Nobody has authority under our constitution to tell him what to do in relation to an existing law. The amendment is framed on the basis that this is still an existing law not to be enforced by the department. That is a completely unlawful order. The Secretary of State would be quite wrong to give guidance on that aspect in Amendment 10, and in relation to the judiciary in Amendment 11.

Amendment 16, which I have tabled, is the way that the House of Commons decided to deal with this same matter, which the noble Lord, Lord Adonis, will improve on with his amendments. The Commons agreed the amendment by a majority of about 100. As far as I am concerned, it can stand, because it does not direct the Secretary of State to do anything unlawful. It obviously hopes that the Secretary of State may manage to do something that the Commons had not quite thought of how to do itself. Anyway, that is the way it is. There is no attempt in Clause 4, as it is now as part of the Bill, to direct the Secretary of State to do anything that is necessarily unlawful.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Debate between Lord Mackay of Clashfern and Lord Adonis

Committee: 2nd sitting (Hansard): House of Lords
Friday 7th September 2018 Lords Chamber

[Lord Adonis]

My Lords, my noble friend Lord Rooker may not care and my noble friend Lord Grocott may say that he has complete licence to disagree with the party’s policy. I respect that but it is not the policy of the party, which is for a democratically elected House. Anything else is a departure from that policy. I respect it but it cannot claim any moral or political virtue at all.

[Lord Mackay of Clashfern (Con)]

My Lords, I wonder whether it aids the Bill in going forward that we have so much discussion of the policy of the Labour Party, or any other party for that matter. We want to get the Bill forward and the less irrelevance that comes into speeches, the more rapid will be the progress.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Adonis

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

[Lord Mackay of Clashfern (Con)]

My Lords, I understand that that political point can be shortly made and it would dispense with all our consideration of this Bill altogether.

I played quite a part in the 2011 Act—along with the noble Lord—in stating what the position in law was for EU law in this country. I was keen to point out that the treaty did not of itself have that effect. It became an argument later when the noble Lord, Lord Pannick, argued about these and other matters in the Supreme Court. However, the point was that the authority for EU law in our country is the 1972 Act. This House affirmed that and the House of Commons accepted it.

The important thing about the 2011 Act is that its repeal is consequential on the repeal of the 1972 Act and our departing from the European Union. Matters that are consequential are usually covered in schedules. If noble Lords wish to discuss purely consequential legislation, so be it, but it is not necessary. As the noble Lord, Lord Adonis, said, we have used it quite a few times and, given the amount of time we have spent on this Bill, it is appropriate that this provision repealing the 2011 Act should be in a schedule.

[Lord Adonis]

My understanding is that it is not consequential that the repeal of the 2011 Act under this schedule will take place when this Bill becomes law at a point determined by a Minister, whereas we only repeal the European Communities Act 1972 on Brexit day, 29 March next year, or later under Clause 14(4) if a Minister chooses to extend the date.

My understanding—it is important to tease out these issues because we are a revising Chamber—is that this is being done deliberately by the Government. They want to forestall any cases coming under the 2011 Act as soon as possible. I assume they have read the legal opinion which raised doubt about the interpretation of the 2011 Act and do not want them rumbling through the courts before the repeal of the European Communities Act 1972 takes effect.

[Lord Mackay of Clashfern]

That does not prevent the repeal of the 2011 Act being consequential on the main provision in this Bill.

--- Later in debate ---

[Lord Adonis]

My Lords, I have always disregarded health warnings on the grounds that one would never eat anything at all if one proceeded down those lines.

The debate has been disappointing in that I do not think the two key points I made have been responded to. I have huge admiration for the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mackay of Clashfern, but they have not addressed the point that, in the way the Bill is framed, the repeal of the 2011 Act is emphatically not consequential on the repeal of the European Communities Act 1972. Rather, it is consequential on the enactment of the Bill and it will take place well in advance of Brexit day and the repeal of the European Communities Act 1972. If it was indeed consequential on the repeal of that Act, which I fully accept it should be because we would not be a member of the European Union at that point, I would have no difficulty at all with the repeal in Schedule 9. It is because it is being deliberately accelerated in advance that there is an issue.

[Lord Mackay of Clashfern]

It cannot happen until immediately after Parliament has passed a Bill fixing a date for leaving the European Union. The 2011 Act has no substance or content at all apart from the European Union treaty, so this idea that it has to be consequential in time is an extra. It is consequential in its subject matter. That is what is really important.

[Lord Adonis]

My Lords, we might not leave the European Union next year. We have not enacted the legislation to do so. At the moment there is no treaty. The 2011 Act would be repealed under the terms of the Bill. The two are clearly not consequential.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Adonis

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I recall many years ago in private practice acting on the instruction of the late Lord Weinstock to fix the price of Hunterston A. At that time, we were in the very lead of nuclear energy development. I regret to say that I have the feeling that we are slightly less in the lead now than we were then. I do not have anything like the expertise of the noble Lord, Lord Broers, but I want to emphasise the need to ensure the important place of nuclear energy in our future plans.

[Lord Adonis]

My Lords, can the noble and learned Lord remember what price he fixed it at? How does it compare with Hinkley Point B?

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Adonis

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Mackay of Clashfern]

I indicated at Second Reading that I would support the propositions that the noble Lord, Lord Pannick, has enunciated on behalf of the Constitution Committee. Bringing into our system legislation from an alien system and doing so reasonably consistently require it to have an allocated status of some kind. Making it primary legislation is probably the best. Otherwise, there will be doubt about precisely which item of legislation goes to a particular area. The result will be to make it possible to dispense with the rather outmoded idea of the supremacy of EU law once Brexit comes along by the date which allows our ordinary system to operate.

I have tremendous respect for the Bingham system and, as your Lordships know, for the noble and learned Lord whose name it carried. It has kept up the traditions and quality of his work wonderfully—I should perhaps in passing declare an interest: I find it very useful to support the Bingham institute in connection with its funding. However, it makes quite a lot of the difficulty of using Henry VIII clauses. This is a very special situation, as the Constitution Committee recognised some time ago, because trying to fit together two systems of legislation is certainly difficult. We must remember the timescale involved in trying to do it any other way. I shall not comment on the detail of the powers to amend proposed in the Bill—that is for a later stage—but it is reasonable at the moment to accept that this is a very special situation with a necessary operation which requires to be performed in reasonably short time to make the whole thing work. Therefore, the idea that we are dividing primary legislation by this method is open to doubt.

[Lord Adonis (Lab)]

My Lords, when we last debated this issue, the Advocate-General for Scotland said that he was very attracted to the proposals published by Professor Paul Craig in his blog—the noble Lord, Lord Pannick, referred to that. I notice that Professor Craig published a subsequent blog on 26 February, also referred to by the noble Lord, in which he suggests that, once the process of transposing law has taken effect, we should assign,

“legal status to EU retained law in the UK based on the status it had in EU law”

Having read his blog as a non-lawyer, I felt that, if the intention is to give certainty, the proposals of Professor Craig would do that—except in one key respect which I hope the Minister might comment on: what process would be undergone between now and next February to allocate the huge body of retained law to one or other category if we were to adopt Professor Craig’s mode of proceeding? Since the Solicitor-General said in the House of Commons that about 20,000 pieces of EU law will be transferred, and if it were possible to establish, as Professor Craig sets out, a criterion based on the intention of existing EU law which would divide between primary and secondary legislation, can the Minister indicate, if he is minded to go down that route, what process would take place, so that, on 29 March next year, we know the status of law being transposed?

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Lord Adonis

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Mackay of Clashfern]

The legal obligation would cease on Brexit day. That is the situation. Unless something has been implemented by that time it is not strictly part of our law. On deciding what is to happen in the future, as far as I am concerned, there is enough to decide at the moment, but nothing will harm the Government if they give some indication of what they would do with instruments that have been adopted but not yet implemented, although, at the date of Brexit, we were obliged to adopt them on some future date.

[Lord Adonis]

Does the noble and learned Lord think that there is a distinction between those directives that we have agreed to where the implementation date is before or after 29 March 2019?

[Lord Mackay of Clashfern]

If it is implemented before the 29th it is part of our law.

[Lord Adonis]

What if the obligation to implement them is before that date, but we have not fulfilled that obligation?

[Lord Mackay of Clashfern]

The question does not arise if they have not been adopted before. The amendment deals only with directives that have been adopted before Brexit day and, even if they are not part of our law, whether they should be admitted, which the Bill could do. The problem is that that might delay the finalisation of this as an Act in force for some considerable time.