Broadcasting (Amendment) (EU Exit) Regulations 2019

Debate between Lord Pannick and Lord Liddle

Wednesday 6th February 2019 Lords Chamber

[Lord Liddle (Lab)]

My Lords, I support that excellent speech from the noble Lord, Lord Foster of Bath. It was extremely well argued and well researched and brought out a series of very real concerns. I have sat patiently through these discussions. We are seeing how Brexit will potentially destroy some of the jewels in the crown of Britain’s industrial and economic capacity. There is no more striking case of this than in broadcasting, which is one of Britain’s great success stories.

My experience of this is as a member of your Lordships’ Internal Market Sub-Committee of the European Union Select Committee, which did a thorough report on non-financial services and took evidence from broadcasters. At the time I was really shocked by the concerns expressed about the viability of their activities in this country. There is no doubt, whether to a greater or lesser extent, that what we are talking about will destroy opportunities for hundreds of young people who would otherwise have the chance of really fulfilling jobs in the media and broadcasting sectors.

No one I recall coming across in this field believes that the European convention is a full substitute for the EU directive. I would like to hear on what basis the Minister thinks it is. It clearly is deficient in that it is not comprehensive and does not have any means of enforcement through the Commission and the court. The fact is our industry is showing that it has no confidence in this poor substitute by the fact so many companies are relocating to the continent.

One thing about the statutory instrument really worries me. What we are doing with it—I can see why from the point of view domestic regulation—is saying that from now on we will no longer have the country of origin principle, but the country of destination principle. That will be used against us by commercial interests on the continent that want to prevent full UK access to the market. They will say, “You want to switch to a country of destination arrangement. That means we insist on the right to regulate your right to broadcast in our country”. This is very bad news for the British entertainment and broadcasting sectors. The Minister has many difficult questions to answer.

[Lord Pannick (CB)]

My Lords, I share the concerns so powerfully expressed by the noble Lord, Lord Foster. His speech demonstrates that these regulations, like so many of the exit regulations we are debating, raise fundamental policy questions. They are being presented under Section 8 of the withdrawal Act and other powers as merely transitional provisions designed to tidy up loopholes, but they are not. They raise fundamental issues of policy.

I have a specific question for the Minister concerning those broadcasters based in EU states that are not parties to the Council of Europe’s European Convention on Transfrontier Television. As the Minister and the noble Lord, Lord Foster, have explained, there is currently no need for Ofcom to license them because they are based in another EU state. As I understand these regulations, and the Minister will correct me if I am wrong, broadcasters based in non-convention states, including Belgium, the Netherlands, Luxembourg, Ireland—apart from for Irish-language programmes—Sweden and Denmark will now need to be licensed by Ofcom. Is it right that they will have to apply for a licence on 30 March or before then, or will there be a transitional provision by which they will be granted one automatically by reason of the fact they were previously covered by the EU directive?

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Liddle

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

[Lord Pannick]

My Lords, I have listened with admiration to the contributions of the noble Lord, Lord Adonis, throughout this Committee. They have been exemplary examples of scrutiny. But on this occasion, I am afraid, I am not persuaded. The reason I am not persuaded is that the 2011 Act imposed a referendum condition which applied in a series of circumstances, and they were all circumstances in which the powers of the EU and its institutions were extended. The Explanatory Notes to the Bill which became the 2011 Act made very clear that its purpose was to implement the commitment of the coalition Government —I quote from paragraph 11 of the Explanatory Notes —that,

“there is no further transfer of sovereignty or powers [from the UK to the EU] over the course of the next Parliament... Any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty”

The plain fact of the matter is that there is no transfer of further powers or sovereignty to the EU from the UK. On the contrary, this Bill is very simple. The agreements being negotiated are designed to achieve exactly the opposite, whether we like it or not—the return of powers to the United Kingdom from the EU. The 2011 Act simply has no application and it is entirely right and proper that if this Bill repeals, as it will, the 1972 Act, it should also repeal the 2011 Act.

[Lord Liddle (Lab)]

My Lords, I would like to intervene briefly to support my noble friend Lord Adonis, and I do this in defence of your Lordships’ House. When the 2011 Act was debated here, I was speaking on the Opposition Front Bench with my noble friend Lord Triesman. I think we gave it six days, possibly seven, in Committee, and three days on Report. We did our best to scrutinise this piece of legislation. It seems to me that the idea that it should be repealed in a schedule without any debate in the House of Commons is, as my noble friend Lord Adonis says, a bit of a constitutional offence.

The noble Lord, Lord Pannick, makes very good points, as he always does. Can I be allowed to make a political point in return? He says that there is no transfer of powers involved in what is going on now. Let me assure you that there is a big transfer of powers to Brussels. Brussels is going to be able to legislate, during the implementation period that we have now signed up for, without any British Minister taking part. We are asking for opt-ins to various pieces of Brussels legislation as part of the negotiations and British Ministers will have no say over those policies—no say on policies on goods trade or on financial services. We will be trying to maintain equivalence with a regime over which we have no say. As to the idea that this Bill is taking back control to Britain, it is in fact handing control in large parts to the EU, where British Ministers and the British Government will have no say at all. We on this side of the House should point out this position and explain that the way to deal with it is to stay in the EU, and that is what we should fight to do.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Liddle

Wednesday 21st March 2018 Lords Chamber

[Lord Liddle (Lab)]

My Lords, I move this amendment on behalf of my noble friend Lord Adonis. He apologises for his absence this morning. I assure noble Lords that he is not having the well-deserved lie-in that many of us feel that we are entitled to; he is on a trip to Dublin with the noble Lord, Lord Heseltine, and Sir Nick Clegg to see what can be done about the question of the Irish border and how to resolve that particular trilemma.

The purpose of the amendment is to draw the Committee’s attention to what is written in Clause 17. We hear lots of soporific, mellifluous legalese in these discussions, but I draw the Committee’s attention to what Clause 17(1) of the Bill actually says. The Minister can perhaps then give me a little tutorial on why it is necessary and not as dangerous as it appears to be to my eye. The clause states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”.


That is a sweeping enabling power for the Executive. The aim of the amendment is to establish from the Government the purpose of their having this sweeping power. This Bill is about Britain’s withdrawal from the European Union. It covers, as we have seen in the debate about Brexit since the referendum, many different aspects of our national life, so what is meant by this clause?

To the extent that we have any bedtime these days, for my bedtime reading I am trying to read books that explain the rise of populism in Europe. In a way, Brexit is a general phenomenon of a rise of populism in Europe and the United States. One book that I am reading at the moment is Professor Richard J Evans’s first volume on the rise of the Third Reich. One moment that makes me proud to be a social democrat is that it was the Social Democrats alone who voted against the enabling Act that set up Hitler’s dictatorship. I am not for one moment of course suggesting that there is a parallel, but why do we as a House have to grant the Government this sweeping legislative power? Can the Minister please explain? I beg to move.

[Lord Pannick (CB)]

My Lords, at the risk of the noble Lord, Lord Liddle, thinking that I am adding to the soporific legalese, I support what he said. It is not just the noble Lord who is concerned about Clause 17. Your Lordships’ Constitution Committee addressed Clause 17 at paragraph 206 of its report on the Bill:

“We agree that the Government may require a power to make ‘transitional, transitory and saving provisions’. However, we are concerned that the Bill creates a power to make ‘consequential provisions’ which is potentially very broad in scope, has the capacity to go well beyond what are ordinarily understood to be consequential matters and includes a Henry VIII power. If Parliament has approved, subject to detailed and appropriate circumscription, other broad delegated powers for ministers, it would be constitutionally unacceptable to undo these restrictions and protections by conferring a general power on ministers to make ‘consequential provisions’ to alter other enactments. We recommend that the power to make ‘consequential provisions’ in clause 17 is removed”.


The concern is that this Bill will confer enormous powers on Ministers under, for example, Clauses 7 and 9 to make delegated legislation. It is difficult, in the context of such powers, however amended, to see why it is also necessary for Ministers to enjoy this broad power, as the noble Lord, Lord Liddle, described it, to make consequential provisions. The concern is that the restrictions that Parliament will impose on the other powers that Ministers will enjoy under Clauses 7 and 9 may be evaded by Ministers by the use of this consequential power.

I am particularly concerned about the risk of that, because if your Lordships focus on paragraph 17 of Schedule 7 to the Bill, on page 51, you see a quite extraordinary provision, which states the following:

“The fact that a power to make regulations is conferred by this Act does not affect the extent of any other power to make regulations under this Act”.


Therefore, it seems to me, as a matter of law, that the fact that we spend hours—it seems like days—looking at particular provisions as we seek to restrict the power that Ministers will enjoy under Clause 7 will have no effect, by reason of paragraph 17 of Schedule 7, on the scope of the power that Ministers also enjoy under Clause 17.

I would welcome some reassurance from the Government that they are thinking about the Constitution Committee’s recommendation. I would welcome some explanation of why Ministers need these consequential powers to make delegated legislation and some assurance from the Minister that he is thinking about whether it is also necessary to include paragraph 17 of Schedule 7, or whether the Bill could make it absolutely clear that any power in Clause 17 must be interpreted consistently with the restrictions that will be contained elsewhere in the Bill.