European Union (Withdrawal) Bill

Lord Pannick Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

Moved by

[Lord Pannick]

15: Clause 5, page 3, line 20, leave out subsections (4) and (5) and insert—
“( ) The following provisions of the Charter of Fundamental Rights are not part of domestic law on or after exit day— (a) the Preamble, and(b) Chapter V.”

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, Amendment 15 is in my name and in those of the noble and learned Lord, Lord Goldsmith, the noble Baroness, Lady Ludford, and the noble Lord, Lord Deben. I will speak also to Amendments 18 and 19 in this group, which are in my name and that of the noble Lord, Lord Beith.

Amendment 15 seeks to include the European Charter of Fundamental Rights as part of retained EU law, with the exception of the preamble and Chapter V. The preamble contains no substantive provisions and Chapter V confers rights such as the rights to vote and to stand as a candidate in elections to the European Parliament, which plainly will have no application once the United Kingdom leaves the European Union.

Noble Lords will know that the charter sets out a number of important legal rights, from the rights of the child in Article 24 to the rights of the elderly in Article 25. It recognises the rights of persons with disabilities in Article 26, the right to healthcare in Article 35 and the protection of the environment in Article 37.

There are three reasons why I commend this amendment to the House. The first is that the Government’s purpose in bringing forward this Bill has been made very clear from the outset. The Prime Minister wrote in the foreword to the White Paper that the Bill seeks to repeal the European Communities Act 1972 on exit day and to convert into our law the body of EU law which applies at that date. Amendments to the body of retained EU law are for another day. As the Prime Minister said in the White Paper,

“the same rules and laws will apply on the day after exit as on the day before”.

The reason for that is very powerful. As the Prime Minister and her Ministers have repeatedly explained, it is to ensure certainty and continuity at exit date. That has remained the Government’s general position in relation to this Bill. On the 11th and final day in Committee on the Bill, the noble and learned Lord, Lord Keen, made the same point. He said:

“The Government have always said that this Bill is not the place for radical policy change”.—[Official Report, 28/3/18; col. 876.]


I agree.

Clause 5(4) conflicts with—indeed, it frustrates—that central purpose of the Bill. It would exclude an important part of existing law from the law which applies at exit date. In doing so, it would cause precisely that lack of certainty and continuity which the Bill is designed to avoid. Clause 5(5) would add to the uncertainty because it says that, although charter rights will not be part of retained EU law, fundamental rights and principles that exist in EU law irrespective of the charter will be retained. This is, quite simply, a recipe for confusion, especially when European Court of Justice judgments, which will become part of retained EU law on or after exit date, themselves rely on charter rights.

Perhaps I may give your Lordships one practical example of the problems that this will pose: the case brought by Philip Morris, the tobacco company. It challenged restrictions on tobacco labelling and packaging. In its judgment dated 4 May 2016, the Court of Justice in Luxembourg relied, in dismissing the claim by Philip Morris, on Article 35 of the charter, which confers a right to a high level of human health protection in EU law. That is an absolutely fundamental right.

--- Later in debate ---

[Lord Keen of Elie]

With great respect to the noble Lord, just because the charter is made part of retained EU law in terms of the Bill does not mean that Union law, which is the linchpin and anchor of the entirety of the charter, is then retained EU law. Union law remains Union law. Therefore the charter will continue to develop. Even though it is ring-fenced within retained law, the body of the charter will be subject to Union law. You cannot have it both ways.

The noble Lord also mentioned the loss of rights. As we indicated, we have done an analysis of rights, which has been published. We have indicated that if, once this Bill is passed, it is apparent that any substantive rights are lost, we will address that. With great respect, it appears to me that the noble Lord misses the fundamental point, which is that we are effectively going to be submitting to a body of foreign law after we exit the EU if we proceed in this way. I am afraid that is the case. We cannot say we are going to be directly implementing European Union law when we are no longer a member. We will not be. It amounts to that.

I accept that various views have been expressed by various parties about the scope of the rights that will be retained after we leave the EU without the charter, and there is a lively debate about that, but let us remind ourselves again that the charter has application only when we are directly applying EU law. My noble and learned friend Lord Mackay of Clashfern made the point. What happens to the right to dignity in circumstances where we are not directly applying EU law? Of course it still exists. We recognise that. We would have no difficulty in recognising that, and we do not require Article 1 of the charter for that purpose. In these circumstances, noble Lords have indicated, quite rightly, that to incorporate, or even to attempt to incorporate, the charter, particularly in the form of this amendment, is to do serious damage to our entire constitutional settlement, particularly post Brexit. I hear someone say, “Outrage”, and I agree with them.

I now come to Amendment 18, which was tabled by the noble Lord, Lord Beith. He suggested that his amendment would be a necessary consequence if Amendment 15 is carried, but I do not accept that it is a necessary consequence in those circumstances. His amendment, which seeks to remove the power in paragraph 2(2)(b) of Schedule 1 and the related provisions in sub-paragraph (3), is not appropriate. Schedule 1 generally ends the ability to bring challenges on EU law validity grounds to what will become retained EU law after we leave. After exit, individuals would continue to be able to challenge EU decisions before the CJEU and to have them annulled, in so far as they apply in the EU. The converted form of the decision would, however, remain in force within the United Kingdom. Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not think it would be right to hand them a wide-ranging new jurisdiction which asks them effectively to assume the role of the CJEU. The noble Lord’s amendment does not alter that general exclusion.

Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument which has been converted and should have a right to challenge it. For example, it would be strange if after exit a UK business were able to challenge and have struck down an EU decision which prevents it carrying out certain trading activities within the EU but would not have any equivalent right of redress in relation to the form of that decision which has been retained as part of UK law. It is for that reason that provision is made for this power. I note the noble Lord’s observation that it may be exceptional and may never be used. I accept that, but it is felt that it should be there as a safety measure. I urge the noble Lord not to insist on that amendment.

With regard to the position of the noble Lord, Lord Pannick, I ask him to think again about Amendment 15. I ask him to think very carefully about the form of it and what he is actually attempting to bring into domestic law, because it simply does not fit. It is in those circumstances that I invite him to withdraw his amendment.

[Lord Pannick]

My Lords, this has been a powerful and passionate debate and I thank all noble Lords who have spoken, whether they have supported Amendment 15 or opposed it. In particular I thank the Minister, even though he thinks I lack—what was it?—the delicacy of touch that is appropriate in these circumstances. I am going to go away and work on it.

I shall attempt—briefly, because we have had a long debate—to answer the main points that have been made against the amendment. The noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Mackay of Clashfern, expressed concern that the charter of rights will enable courts to strike down legislation. The noble Lord, Lord Howarth, expressed a similar concern: “What about parliamentary democracy?” was his theme. The Minister put his case very high: he said it was “shocking” and a constitutional outrage that we should be bound after exit by a body of foreign law. I have to ask him to read his own Bill because under the Bill, if a statute enacted before exit day is inconsistent with any part of retained EU law, the statute gives way. It is the supremacy of retained EU law—see Clause 5(2). So a concern about parliamentary sovereignty is no basis for excluding the EU Charter of Fundamental Rights from retained EU law. Legislation that is enacted after exit day will take priority over all retained EU law, which, if the amendment is passed, will include the charter. That is how the Bill asserts the sovereignty of Parliament, together with Clause 7, so this is a complete red herring. Amendment 15 has nothing whatever to do with the sovereignty of Parliament. The Bill deals with the sovereignty of Parliament in a perfectly acceptable way. It maintains the sovereignty of Parliament. We can do what we like after exit day, whether or not Amendment 15 is approved.

The noble Baroness, Lady Deech, criticised the drafting of the charter. However, in the context of a Bill that is designed to secure legal continuity on exit day, it cannot be right for noble Lords to point to individual provisions in the charter that they do not like or which are poorly drafted. The reason is that noble Lords could carry out the same exercise on every regulation or directive that is to be part of retained EU law and is being read across. Again, that is no basis for singling out the charter.

Then there were complaints from the noble Baroness, Lady Deech, and the noble Lord, Lord Faulks, expressing concerns about judgments by the European Court of Justice. Under Clause 6 of the Government’s own Bill, though, it is only judgments handed down before exit day that are binding, and only up to the level of the Supreme Court. Judgments that are given by the Court of Justice in Luxembourg after exit day are simply not binding on our judges; it is up to our judges whether they follow what the Luxembourg court may say in future. I emphasise a point I made in opening this debate: neither the noble Baroness, Lady Deech, the noble Lord, Lord Faulks, the Minister nor anyone else has given any examples of judgments given by the Court of Justice in Luxembourg on the charter to which they take exception.

Finally, the noble Lord, Lord Cavendish of Furness, told the House in a striking intervention—I hope I quote him correctly—that the good Samaritan did not need a bunch of lawyers to tell him what do. I say to him and to the House that, unfortunately, government and other public bodies often need to be told by judges what to do. I say to the noble Lord, Lord Shinkwin, that Parliament has often failed to protect fundamental rights. Without enforceable human rights, the victims of injustice and discrimination can and do go unremedied in the context of employment, equality or property rights. I say to the noble Lord, Lord Cavendish, and others on his Benches that if a Labour Government under Mr Corbyn were to be elected, they would be glad of the ability of courts to listen to human rights cases to secure remedies against arbitrary state action. They should think about that point, which I put forward as a Cross-Bencher.

As I said in opening this debate, to exclude the charter from retained EU law is unprincipled and unjustified. The House has heard no coherent defence of the Government’s position. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Pannick]

19: Schedule 1, page 16, line 21, leave out paragraph 3

[Lord Pannick]

My Lords, we debated Amendment 19 earlier. I remind the House that it would remove the provision in Schedule 1, paragraph 3, which says that although the general principles of EU law are to be part of retained EU law they cannot provide a cause of action. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Pannick]

21: Clause 6, page 3, line 34, leave out subsection (2) and insert—
“(2) A court or tribunal may have regard to anything done on or after exit day by the European Court, another EU entity or the EU where it considers it relevant to the proper interpretation of retained EU law.”

[Lord Pannick]

My Lords, Amendment 21 is in my name and those of the noble and learned Lords, Lord Goldsmith and Lord Wallace of Tankerness, and the noble Viscount, Lord Hailsham. It concerns the powers of courts and tribunals to have regard to judgments of the European Court of Justice in Luxembourg handed down on or after exit day.

When we debated this topic in Committee, there was widespread agreement that Clause 6(2) needed to be amended to give clear guidance to the judiciary. I and other noble Lords have had many meetings and discussions with the noble and learned Lord, Lord Keen, and with the Solicitor-General. I thank them on my behalf and that of the noble and learned Lord, Lord Judge, who cannot be present for this debate, for the care with which they have considered this important topic. I am very pleased that the Government have tabled Amendments 23, 24 and 25, which I think will remove the main concerns about Clause 6(2). Government Amendment 24 removes the opening words of the existing Clause 6(2), which suggested a default position of the court or tribunal not having regard to judgments or decisions given on or after exit day. Amendment 25 removes the requirement that courts or tribunals should ask themselves whether it is appropriate to have regard to judgments or decisions given on or after exit day. The amendment rightly states that the criterion is whether the court or tribunal considers the material relevant to the matter before the court. I am content with government Amendments 23, 24 and 25, subject to four points on which I would welcome assurances from the Minister.

First, Amendment 23 introduces new opening words for Clause 6(2) which make the subsection subject to Clause 6(1) and (3). Some concern has been expressed that these opening words somehow negate the substance of Clause 6(2). I do not believe that is so, but it is the Minister’s view that matters. Can he therefore please confirm that those opening words are intended simply to reinforce the duty of the court or tribunal on or after exit day to follow the detailed requirements in Clause 6(3) and to reinforce the duty under Clause 6(1) to interpret and apply retained EU law without being bound by anything decided in Brussels or Luxembourg on or after exit day, by contrast with what the courts have sometimes suggested is the obligation to follow the case law of the European Court of Human Rights under the Human Rights Act? But—this is the important point—the new opening words are not intended to affect the power of the court or tribunal, given by the substance of Clause 6(2), to have regard to judgments and other decisions in Luxembourg and Brussels given on or after exit day when domestic courts and tribunals interpret retained EU law.

Secondly, Clause 6(2) refers only to,

“anything done on or after exit day”.

Anything done before exit day will of course be part of retained EU law, subject to the limits stated in the Bill. However, it is possible to think of cases where a judgment of the European court given before exit day is relevant to the issue before the domestic court, even though that judgment is not part of retained EU law. Let us suppose, for example, that Parliament enacts new legislation on medicinal products to replace the existing law. If there is a dispute about the meaning of a section of that statute, the court may consider relevant a decision of the European court given last year on similar requirements.

It is also easy to envisage cases where a judgment of the European court handed down on or after exit day may be relevant to an issue in our courts which is not an issue about the interpretation of retained EU law. I therefore ask the Minister to confirm that Clause 6(2) is not intended to prevent a court or tribunal having regard to decisions of the European court handed down before or after exit day in cases not concerned with the interpretation of retained EU law, just as our courts may consider it relevant to have regard to a judgment of the Supreme Court of Canada or the High Court of Australia.

Thirdly, your Lordships’ Constitution Committee recommended in paragraph 142 of our report that Clause 6 should state that in deciding what weight to give to judgments or decisions of the European court or other European bodies given on or after exit day, our courts and tribunals should be able to take into account the terms of any agreement between the UK and the EU that the court or tribunal considers relevant. I moved an amendment to that effect in Committee. I see nothing in Clause 6 to prevent courts or tribunals taking such material into account if they consider it relevant to the issue before them. Does the Minister agree and will he confirm that this would be a matter for the judgment of the court or tribunal?

Fourthly and finally, the Minister knows that the attention given to the wording of Clause 6(2) has in part been because of concern to protect the judiciary against criticism that it is making a policy choice if and when it decides to have regard to judgments of the European court on or after exit day. The Supreme Court will also have to make judgments under Clause 6(3) as to whether to depart from judgments of the European court which are part of retained EU law. After the abuse directed at the Divisional Court following its judgment in the Gina Miller case in November 2016—I declare my interest in the case, not in the abuse—the noble and learned Lord, Lord Keen, was clear and forceful in his speedy defence of the independence of the judiciary, unlike the then Lord Chancellor. Can the Minister assure the House that when judges exercise their powers under Clause 6, the Lord Chancellor will see it as his role to defend the independence of the judiciary against any repetition of such abuse? I beg to move.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should inform the House that if either Amendment 21 or Amendment 22 is agreed to, I cannot call Amendments 23, 24 and 25 for reasons of pre-emption.

--- Later in debate ---

[Lord Pannick]

I thank the Minister for giving the assurances that I sought on each of the four points that I raised. He has been exceptionally helpful in addressing these issues under Clause 6 which have caused great concern, and Clause 6 is much improved by the government amendments. I beg leave to withdraw Amendment 21.

Amendment 21 withdrawn.

--- Later in debate ---

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, the way in which retained EU law will be treated in our domestic statute book—what has been termed the “status” of EU law—is undeniably an important issue. It has been one of the key themes of our debates on the Bill, and the Government’s attempts to deal with it are woven throughout the Bill. The Government have always recognised the importance of getting this right—above all, in the context of the question of amendability.

These amendments, which deal with the amendability of retained EU law by secondary legislation, are to a large extent about ensuring its enhanced protection. As noble Lords will know, the House debated one way of giving enhanced protection to some parts of retained EU law last Wednesday, when it agreed to add a new clause to the Bill. Before setting out the government amendments, I will take a moment to explain to the House why the Government consider that the approach adopted last Wednesday is not the answer.

Amendment 11 in the name of the noble Baroness, Lady Hayter, carried last Wednesday, prevents crucial corrections being made in time for exit day. By failing to define key terms, and by introducing into the Bill arguably undefinable concepts such as “technical changes”, it introduces a high level of risk to attempting to take forward even the most uncontentious of corrections by secondary legislation. We have always been clear that most corrections, however innocuous and benign, require some limited policy choices.

Those corrections are how we ensure that current protections continue to operate. Our analysis is not complete but we believe that a very significant proportion of the planned secondary legislation programme, if made, would be at real risk of legal challenge, so the result of that amendment could be an enormous increase in the volume of needless primary legislation, which this House would then have to consider before exit day. In the end, we might be unable to achieve our core objective of ensuring a functioning statute book on exit day.

The volume of legislation required to keep pace with developments is already too great for it all to be done through primary legislation and this is likely to increase when we take on the legislative responsibilities of the EU. It is incumbent upon all of us to ensure that we put in place a balanced system. That system must enable the House to fully scrutinise the most significant changes to legislation and maintain the existing protections that we all value, while allowing for flexibility to keep pace with a fast-evolving world. It would be a dereliction of our duty to put in place a system which leaves Parliament unable to make important changes or updates which would enhance existing protections, such as the regulating of new hazardous chemicals or extending standards to new marine contaminants.

Parliament has debated at great length the speed at which our legislation should diverge from that of the EU but, whatever that pace, we must not leave Parliament hamstrung. The Government’s approach is to respect the balance between maintaining protections and the flexibility to reflect developments.

I know some noble Lords were in favour of deeming elements of retained EU law converted under Clauses 3 and 4 that are not already part of our domestic legislation to be one or another type of domestic legislation. Unfortunately, it is not that simple. For example, to deem an EU regulation primary legislation has all sorts of impacts, ranging from the problematic to the bizarre, such as requiring it to be printed on vellum and stored in the Queen Elizabeth Tower. Some noble Lords also wish to treat all retained EU law that is not already domestic legislation as if it were primary legislation. I recognise that noble Lords who have advocated this have the best of motivations, but it would leave the law so rigid and inflexible as to be virtually inoperable. The EU adopted just under 500 amending pieces of tertiary legislation in 2017. If this Parliament takes on the role of doing the same when those powers are returned to this Parliament by primary legislation only, we face a serious risk of these regimes ceasing to function.

I know the House loves examples, so let me provide one. Say that the Commission adopts delegated Acts under the biocidal products regulation to restrict active substance entry to the market. This is clearly an important public health matter which should continue to be adjusted rapidly and without primary legislation. Incidentally, that is also something that Amendment 11 would prevent. There are many similar examples in EU legislation and they vary as much as our domestic delegated powers. Therefore, instead of treating all direct EU legislation as domestic primary legislation for all purposes, the Bill sets out how retained EU law is to be treated in a number of specific situations, such as for the purpose of the Human Rights Act. Our amendments to the Bill for several of those purposes draw a similar distinction to that which the noble Baroness, Lady Bowles, has drawn in her Amendment 39. That is that EU measures adopted under co-decision or ordinary legislative procedure are to be treated as primary legislation.

We have proposed, broadly, that EU regulations and Clause 4 rights should be treated as primary legislation for the purpose of amendability and that tertiary legislation should be treated as subordinate legislation. Regulations and Clause 4 rights will therefore be amendable only by primary legislation and the very limited stock of powers to amend primary legislation on the statute book. Even then, those powers will operate only where the context will permit. This will ensure that the frameworks of retained EU legislation are maintained and can be adjusted only in the same way Acts of Parliament can, but that the technical matters underneath them can be adjusted by subordinate legislation to react quickly to the changing circumstances of the day, as now.

Our amendments provide that, in the future, Parliament will need to agree any new delegated powers to amend a specific regulation, or regulations. This House will be the gatekeeper that ensures there is no bonfire of EU regulations. This will include all the powers that we are transferring under the Bill from the Commission to UK Ministers and authorities. These are generally very tightly drafted and it will have to be clear to the House where and how they can amend regulations. If Ministers cannot justify this to noble Lords, they will not be granted these powers. However, I hope your Lordships will agree, for example, that the Secretary of State should be able to adopt measures such as the wine oenology implementing regulation to ensure that our wine producers are not left behind the rest of the world as technology advances. I know that would be a subject close to many noble Lords’ hearts.

Beyond amendability, there are a limited number of other places where matters turn on whether a law is found in primary or secondary legislation. This is the case in relation to the Human Rights Act, where the remedies available in response to challenges are different in different cases. We have therefore also reflected the distinction that EU regulations are to be treated as primary and EU tertiary legislation as subordinate for the purposes of the Human Rights Act. This will mean that, as with primary legislation, claimants will be able to receive a declaration of incompatibility in the event of a successful challenge to an EU regulation. I should point out that this is a very rare measure, which I am not aware that Parliament has ever ignored. For challenges against amendments to EU tertiary legislation, our courts may, if appropriate, strike down the legislation.

We have addressed in the Bill the areas of importance where matters turn on the distinction between primary and subordinate legislation. Our discussions outside this Chamber, including with academics and others, have not identified any other such matters. I am happy to return to the issue at Third Reading if other areas are raised in debate.

I have not yet addressed directives, which I know the noble Baroness, Lady Hayter, is very interested in. Directives, of course, do not form part of our domestic legislation. They have already, over the years of our EU membership, been implemented in primary legislation and under a range of delegated powers but principally in regulations made under Section 2(2) of the European Communities Act. The status of these regulations is clear. They are and should remain statutory instruments. I know that these regulations contain important protections which some noble Lords wish to ensure cannot be easily eroded, but it would be constitutionally deeply questionable and practically unnecessary to attempt simply to declare these instruments to be anything different.

All regulations made under Section 2(2) of the ECA will be preserved following the repeal of that Act by the Bill. There will then be almost no powers on the statute book; I cannot be absolutely definitive, but my officials have found only a handful which, within the scope of the policy area, might be able to amend regulations made under Section 2(2). Therefore, almost all of these regulations will need to be modified by primary legislation or new powers, which this House would of course have to approve. Nevertheless, the Government have heard the concerns raised in the House about the level of scrutiny of modification of these regulations. We are committed to ensuring that the protections provided in regulations made under the ECA are maintained throughout the process of exit, and that any future modifications as the Government continue to build on these protections are properly scrutinised.

The Bill already provides for statements in relation to the SIs under it, so government Amendment 112A therefore requires Ministers and other authorities making statutory instruments under powers outside this Bill after exit day to make statements explaining the “good reasons” for any changes to regulations made under Section 2(2) of the ECA and the effect of the amendment or revocation on retained EU law. There will be no escaping the scrutiny of this House.

I am sorry for the detailed explanation, but I hope I have provided an appropriate explanation of why these amendments both give clarity to the status of retained EU law and are the right way to protect it as we transfer it on to our statute book. I recognise that the status this legislation should hold is a particularly complex issue, on which legal and academic minds have differed. I pay tribute to all noble Lords who have applied themselves to the task. We have listened and I appreciate all the contributions that have been made. Our amendments reflect a sensible approach, one that recognises and reflects the existing hierarchy within EU laws, balances the need for effective parliamentary scrutiny while giving Parliament the flexibility it needs to amend an extremely large body of legislation, and allows this place to truly take back control of our laws. I beg to move.

[Lord Pannick]

My Lords, your Lordships’ Constitution Committee recommended at paragraph 51 of our report—HL 69—that the Bill should address the legal status of retained EU law; that is, whether it has the status of primary legislation, secondary legislation or something distinct. I am pleased that the Government have considered this matter—I am grateful to the Minister—and have produced the amendments in this group. My understanding is that they address the problem by ensuring that any domestic law which becomes retained EU law under Clause 2 continues to have the same legal status that it has at the moment: it is either primary legislation or secondary legislation.

In relation to retained EU law under Clauses 3 and 4, the amendments do not so much confer a legal status as address the problem by reference to the circumstances in which the retained EU law can be modified. The provisions are complex, and, I fear, necessarily so, given the inherent difficulty of the exercise.