European Union (Withdrawal) Bill

Lord Pannick Excerpts

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

[Viscount Hailsham (Con)]

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

[Lord Pannick (CB)]

My Lords, it is indeed striking that directives are not included in Schedule 5, part 1, paragraph 1(2). The reason may be that directives are given a very odd status under Clause 4(2)(b), which we debated on a previous day. Under Clause 4(2)(b), retained EU law does not include rights which arise under an EU directive when they are,

“not of a kind recognised by the European Court or any court or tribunal”,

in this country,

“in a case decided before exit day”.

We debated the complexities, the uncertainties and, as I see it, the unsatisfactory nature, of the clause. Is that the reason why directives are not included in Schedule 5, part 1? If not, what is the reason?

[Baroness Ludford (LD)]

My Lords, I support my noble friend’s valuable amendment. I wonder whether the Government are being as transparent as they ought to be. After all, there have sometimes been well-founded suspicions of gold-plating of directives and, in contrast, of not entirely full or accurate transposition of directives. I am sorry to repeat myself, but I gave the recent example of the European investigation order, which was not transposed in regulations last December with exactly the wording in the directive. The European Convention on Human Rights has been substituted for the charter, which is in my opinion a breach of the accurate transposition of the directive.

Not only during the transition but well into the future, businesses and all citizens will be obeying a lot of the acquis of EU law, if the Prime Minister’s emerging strategy of staying plugged into many EU policies and agencies one way or another comes to fruition. Therefore it is right for businesses and individuals to be able to see how EU law in directives, which unlike regulations, does not have direct effect, has been translated, transposed into UK law, so that they can track its accuracy. This is a long-running theme in the European Parliament, as my noble friend will know. Indeed, the Minister will know that there was an attempt to campaign in the European Parliament to have what was known in the jargon as “correlation tables”. It was possible to see exactly how EU law had been translated into national law in all EU states.

Funnily enough, the member states never wanted that to happen. They got away with a bit of smoke and mirrors of people not understanding where law had come from at the European level, or where it had not. Where something had been added at national level that was sitting in some dusty drawer in Whitehall and this convenient vehicle of an EU directive came along, they said, “Right, we’ll just slap into that things we’ve long thought about and no one will realise that it didn’t come from Brussels”. Well, people need to know whether it came from Brussels or not. The kind of transparency that my noble friend is seeking would be extremely useful.

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[Lord Lisvane (CB)]

My Lords, this amendment is in my name and those of my noble friend Lord Pannick, my noble and learned friend Lord Judge and the noble Lord, Lord Tyler. It is grouped with Amendment 355ZZA in the name of the noble Baroness, Lady Bowles of Berkhamsted, which I venture to suggest has a great deal of merit.

Amendment 355 may appear to address a minor matter but it is an important matter of principle. The exception from the duty to publish provided by paragraph 2(1) of Schedule 5 depends on a Minister being satisfied that a relevant instrument, as defined in paragraph 1(2) of the schedule, has not become or will not become on exit day retained direct EU legislation. I entirely appreciate the argument that, in that case, there may be little point in publishing some or all of it. However, where the argument goes off course is that, while paragraph 2(2) allows a Minister to give a direction to the Queen’s printer not to publish a specified instrument or a category of instruments, paragraph 2(3) allows this to be done by mere ministerial direction.

The Delegated Powers Committee, of which the noble Lord, Lord Tyler, and I are both members, was critical of this. At paragraph 49 of its 12th report, the committee said:

“Amending the law by direction … is highly unusual. The delegated powers memorandum”—


that is, the Government’s delegated powers memorandum to the committee—

“justifies this on the ground that it is a ‘limited administrative power’. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation”.

It does not matter that this power is proposed to be used in relatively uncontroversial circumstances and that the identification of any instrument or category of instruments may be relatively straightforward. The important point is what the Delegated Powers Committee calls an “ominous precedent”. This may seem a little Cassandra-like, although I think that the Delegated Powers Committee is believed rather more often than was Cassandra with her repeated nul points, but, right on schedule, along comes the Taxation (Cross-border Trade) Bill, which makes much use of the unwelcome concept of making law by public notice—in effect, by proclamation, with no role at all for Parliament.

In the referendum campaign, much was made of parliamentary sovereignty, and it has been a recurrent theme of our debates in Committee. I suggest that we should be sharply aware of procedures or processes that tend to diminish or extinguish the role of Parliament in favour of that of the Executive. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I agree entirely with what my noble friend Lord Lisvane has said. I simply add that sub-paragraph (3) is also objectionable. It states:

“A Minister of the Crown must publish any direction under this paragraph”.


However, it does not even say how or where the Minister is to publish. It gives complete discretion to the Minister.

I also have a wider concern about paragraph 2: that is, the power for the Minister to create an exception to the duty of the Queen’s printer to publish retained direct EU legislation. The Minister recognised in the previous debate, and appropriately so, the importance of the law being publicly identifiable so that everyone knows what the corpus of retained EU law is. However, paragraph 2 contradicts that. To give a discretion to the Minister to exclude something from the material that is to be published by the Queen’s printer if the Minister takes the view that a relevant instrument will not become direct EU legislation leaves matters completely uncertain. I suggest that a much more sensible approach is that, if the Minister takes the view that a particular instrument is not becoming retained direct EU legislation, the Minister should have a duty to ensure that it is not included in the material that is to be published by the Queen’s printer.

What we want, and what the public are entitled to have, is a body of material that in the view of the Government constitutes the retained direct EU legislation that is to become part of our law. These matters should not be left to the discretion of Ministers.

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[Baroness Goldie]

Well, I have listened with interest to these contributions. We will certainly reflect on what has been said. I understand the desire of the Chamber to get some whiff or wind of what the Minister might be contemplating and I can certainly undertake to look at what the noble Baroness, Lady Kramer, and my noble friend Lord Hailsham have said. I was going to go on, if I may be permitted to do so, to try to cover the point about secondary legislation, if I can pause for breath to do that.

[Lord Pannick]

The Minister is being very patient. I would like to add to what the noble Viscount has said. A real disadvantage of what the Government are proposing—that is, there is publication with no opportunity for the matter to be debated before it is decided—is that there is a means of challenge, and that is in court. It would be most unsatisfactory if the procedure that the Government adopt is that Ministers make a decision and publish a direction, there is no opportunity for debate in either House and then anyone who is aggrieved takes the matter to court. Surely it would be far better for this to be done by statutory instrument, and then any concerns could be properly debated.

[Baroness Goldie]

I hear the noble Lord, and I shall certainly reflect on that observation, but if I may be permitted to advance what the Government consider to be the case in relation to the proposition that this be dealt with by secondary legislation it might enable the Committee to understand why the Government have adopted the view that we have. The alternative option to require that any such direction is to be made of secondary legislation would arguably be counter- productive. The task of identifying instruments that will not become retained EU law will be a continuous one, and our awareness of such instruments will grow over time. I understand and respect the motives behind the amendment. I have to suggest that it would seem rather paradoxical to require the Government to legislate repeatedly in order to avoid the publication of irrelevant EU legislation, but maybe I am being perverse in looking at it that way. The legislation required to ensure that our law operates effectively after exit day will be significant, and I respectfully suggest that we should try not to add to that task in this case. As I have said, though, many useful points have been raised on this complex question, and I shall reflect on all the contributions made. However, on the basis of what I have been able to say, I hope the noble Lord will feel able to withdraw his amendment.