European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Davies of Stamford

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

[Lord Pannick]

My Lords, I too support Amendments 21 and 22, which would restrict the powers of Ministers to modify retained EU law by secondary legislation in the contexts that have been mentioned: employment rights, equality rights, health and safety, consumer standards, environmental standards and human rights. All of those are vital areas. It is important in considering these amendments to recognise the breadth of the secondary legislation powers that are being conferred on Ministers under the Bill—and not just by Clause 7, to which we will come next week or the week after. The point is made by the organisation ClientEarth in a helpful opinion, which I commend to the Committee, written by Pushpinder Saini QC. He draws attention—and I draw the attention of the Committee—to some provisions that are tucked away in Schedule 8 to the Bill, on page 55. Paragraph 3(1) refers to existing powers in legislation to make subordinate legislation. It says:

“Any power to make, confirm or approve subordinate legislation which was conferred before exit day is to be read, on or after exit day and so far as the context permits or requires, as being capable of being exercised to modify … any retained direct EU legislation”.


That is a remarkably broad power. On page 56, at paragraph 5(1) of Schedule 8, there is a similar power for any future power to make subordinate legislation. Of course, the word “modify” has a very broad meaning, because it is defined in Clause 14(1), on page 10, to include amending, repealing or revoking.

That gives context to the importance of these two amendments. Can the Minister confirm that this really is the Government’s intention? Schedule 8 does not have the two-year limitation period that Clause 7 has. Clause 7 applies only for two years, which is bad enough, but at least it is time-limited, whereas Schedule 8 is not. Is it really the Government’s intention to confer power on Ministers to repeal by secondary legislation—with all the difficulties that poses for adequate scrutiny by Parliament—any employment rights and any of the other important protections mentioned in Amendment 21 and 22 in so far as they are part of retained EU law, which as we have heard covers the Equality Act and many other Acts in so far as they derive from, or are linked to, EU law obligations?

[Lord Davies of Stamford]

My Lords, the support of the noble Lord, Lord Kirkhope, for the amendment will be welcome. It reflects what I have always thought was a considerable cross-party consensus in this country in favour of a reasonable amount of regulation. Of course there are fanatics. Professor Minford is a very good example of an intelligent man who believes if we got rid of all regulation it would be a very good thing, and he has made calculations of the economic benefits to the country if literally all regulations—health and safety, environment, consumer protection and employment protection and so on—were simply abolished. However, he is rightly regarded as a fanatic in his own profession and indeed in politics. There are a number of people on the right wing of the Conservative Party who have always been very close to that way of thinking, and it would be quite terrifying if the Government, under the camouflage of taking powers apparently needed to bring about Brexit, found themselves in possession of instruments that meant that without any real let or hindrance they could simply take an axe to the protective regulation that has emerged in this country over the decades.

All civilised countries have to have a reasonable amount of regulation in these fields or they very rapidly cease to be civilised. One of my great worries about leaving the EU is that we will probably end up with more regulation that in many cases will be much less rational: it will be the result of a campaign by the Daily Mail and weak Ministers giving in, saying, “Oh goodness, let them have what they want”, and regulating on this or that. There is a much greater chance of that happening when we are no longer part of a body of 28 countries that are forced to look at these issues in realistic terms and come to some agreement on the subject. That is very worrying.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Davies of Stamford

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Davies of Stamford]

My Lords, I am being persistent this evening because I want to point out the glaring contradiction in the views that have been put forward in support of the Government and of the Bill as it currently stands. The noble Baroness, Lady Deech, says the Charter of Fundamental Rights is a pernicious and dangerous document—“dangerous” was her word—that would lead to courts in this country setting aside laws that they did not like, which would be scandalously contrary to British traditions of constitution and law. On the other side, we have had people, and the noble Lord, Lord Lamont, is the latest example of this, saying the reason why we cannot have the Charter of Fundamental Rights in the Bill and transferred into English law is that it is unnecessary and would be confusing because all the rights are there and some of the rights are already in the corpus of British law. Noble Lords must make up their minds: they cannot say something is a radical and pernicious measure with substantial negative consequences but at the same time say that it has no effect at all and is merely otiose. There is a fundamental contradiction there. The noble Lord, Lord Pannick, noticed the same thing but was not quite so explicit about it as I have been.

[Lord Pannick]

I did my best.

[Lord Davies of Stamford]

There is a confusion in this country that comes up quite frequently. We like to think—we are brought up to think it—that we do not have a written constitution in this country and we do not have constitutional laws. That is totally untrue: the Bill of Rights is a constitutional law; in my view the Bill that we are now trying to repeal, the European Communities Act, is a constitutional law; and the Human Rights Act is certainly a constitutional law. By “a constitutional law”, I mean a law that is generally regarded as foundational and is prayed in aid before the courts and referred to in court judgments across a whole range of subjects. Because of that contradiction, we do not really recognise what is going on and we get ourselves into a frightful confusion.

Unlike the noble Baroness, Lady Deech, I am not shocked and offended by the idea that a court could put aside a Bill that was contrary to existing law. The remedy, of course, is quite simple: Parliament can change either the existing law or the previous one. The noble Viscount, Lord Hailsham, my Lincolnshire neighbour, came out with the right solution when he said that the check and the important constitutional protection against a Government with a parliamentary majority acting entirely irresponsibly or even tyrannically is that any Bills they put forward would have to go through both Houses. In that context, one hopes that the House of Lords would act as a guardian of the constitution and be prepared to stand up to the Government and wait for them, if necessary, to bring in the Parliament Act to override it. That would be a considerable check and balance, and it is a very important role of this House that we are there as a long-stop in such circumstances. The noble Viscount, Lord Hailsham, came up with the right solution and I am sorry that I did not sign his amendment, but I certainly approve of it very much, and if he comes forward with something like it at Report, I shall be happy to support it.