European Union (Withdrawal Agreement) Bill

Lord Thomas of Cwmgiedd Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

18: Clause 22, page 26, line 28, at end insert—
“( ) But regulations under this Part may not amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.”Member’s explanatory statement
This would ensure that regulations made under this Part may not make provision to amend the Scotland Act 1998, the Government of Wales Act 2006, and the Northern Ireland Act 1998 in line with restrictions under new paragraph 11G, Schedule 2 to the European Union (Withdrawal) Act 2018 (Clause 19).

[Lord Thomas of Cwmgiedd (CB)]

My Lords, yesterday, I explained the purpose of the amendments that we sought to make at that stage, and the first, second and fourth amendments in this group all underlie the same purpose; namely, to ensure that if changes are necessary to the devolution settlements, they are dealt with in a proper constitutional manner, and that when we are outside the EU, the spirit, as well as the letter, of the devolution settlements is followed and the Government at Westminster pay the greatest regard to those.

I should make it clear, as I did yesterday, that I approach this from the standpoint of Wales, in part because that is where, by and large, my experience comes from, and because the union and its continuation is so important to Wales. It is essential that this House, and, I hope, Her Majesty’s Government, give every encouragement to those in Wales who wish to see the union strengthened, and by close co-operation. It may seem that these devolution issues are not that important at this time, but they are. It is inevitable that the devolution schemes will have to be looked at in the light of our departure from the European Union.

I will deal with each of the three proposed amendments, the first of which seeks to amend Clause 22. I intend to say very little about this. It follows on from last night’s debate on the amendments to Clause 21 and the extent to which powers conferred in that clause are not subject to limitations. The same arguments apply to Clause 22. In light of the position that was left last night, I see no point in advancing the arguments to the same effect all over again.

On Clause 26 and Amendment 23, in a way, this amendment comes out of order, because it presupposes that the amendments suggested that would delete proposed new subsections 5A and 5B in the name of the noble Lord, Lord Pannick, and other noble Lords, will not proceed. I will make some observations in due course in support of the objectives of the clause, but not on the manner in which those objectives are sought to be carried out. I will make those observations when we come to that amendment. This amendment addresses a much simpler issue: the importance of giving due regard to the views of the devolved Administrations in Wales, Scotland and—now that it is again in place—Northern Ireland, in formulating any draft regulations of the kind envisaged in the clause, both as to the courts that are to be entitled to depart from previous decisions and the tests that are to be applied.

The clause rightly provides for prior consultation with the judiciary if Ministers decide to proceed in this way. Although Wales’s judiciary is linked with that of England at present, I ought to declare that I presided over a commission appointed by the Welsh Government that examined the future of the legal system in Wales, and in particular, the possible establishment in due course—long outside the scope of the time of this Bill, of course—of a separate judiciary in Wales. The clause also provides for other persons to be consulted but does not list them. Neither Welsh, nor Scottish nor Northern Ireland Ministers are included in the list of consultees. However, bearing in mind that retained EU case law is comprehensive in its definition, and that both the devolved legislatures and the devolved Governments have made legislation and acted on the basis of current law within the devolved fields, it seems obvious that they should be consulted if there is to be a change in the scope of the courts and a new test is to be laid down. They are vitally affected by it, and they should not be left out. The amendment is simple, asking that the role of the devolved Assemblies and Administrations be recognised. I understand that when this clause first appeared in the Bill, there had been no prior discussion with Welsh Ministers about this issue. I hope that the Government will look at it and give the closest possible attention to this amendment.

On Clause 38 and Amendment 45, as the report of the Constitution Committee states in welcoming this clause’s recognising the sovereignty of Parliament, the clause has no legal effect. It may therefore be surprising that I wish to take up time on a clause that has no legal effect. However, the Explanatory Memorandum also makes it clear that there is no material difference to the position of Parliament. Yet I agree that there are circumstances in which it is useful to remind people of the basics of our constitution, and this is no exception.

However, this amendment has been tabled because if there is to be such a reminder—the clause can have no purpose other than that—it should be recognised that since 1998, there has been a significant change to the constitution and in particular to the devolved schemes of administration. In failing to refer to the Sewel convention, which provides that Parliament will not normally legislate without the agreement of the National Assembly, the Scottish Parliament and the Government of Northern Ireland in relation to devolved matters, the clause does not put in place the correct balance of our constitution as it now moves forward. The amendment has been tabled to provide such a reference. It would ensure that for the future—as I hope would be the case in any event—the importance of the devolution settlement is critical to how the union is preserved as we go forward to our life outside the European Union. I beg to move.

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The amendment suggests that the convention applies to the entering into and ratification of international treaties, such as the future relationship agreement. It does not. The entering into and ratification of treaties is a reserved matter. As a matter of law, under the devolution settlements, international relations are the responsibility of the UK Government and Parliament, which includes MPs representing all parts of the UK. However, that is not to say that the devolved Administrations do not have a direct interest in our future relationship with the EU. As I have made abundantly clear, of course they do, and we will draw on their knowledge and expertise to secure an agreement that works for the whole of the UK. As always, we will seek legislative consent for any related primary legislation, including that required to implement the agreement, in areas that are in the competence of the devolved legislatures. I do not believe that this amendment will facilitate this process any further and I therefore urge the noble and learned Lord to withdraw it.

[Lord Thomas of Cwmgiedd]

I am grateful to all noble Lords, who have spoken in this debate. It has underlined how important it is for the future that we look carefully at these devolution issues and, in particular—what I regret to say is my experience as well—address a lack of understanding of the significance of devolution as we go forward.

Things have improved from the first occasion when I had to talk to an official about laying out legislation slightly more carefully so that Wales’s position was clear. He told us, “Yes, they did that in agriculture Bills for sheep, so they could easily do it in other Bills for Wales”. Things are better than that, but maybe not better enough.

It is very important that we put in place the necessary assurances—preferably in legislation, but also by way of structure. Words are fine, but deeds are better. I hope that, by raising these points, we will show that we can proceed with respect for our changed constitutional position and that we in this House—and the Government as well—can do everything possible to reduce the risk of any split in the union. With regard to Wales, it is important that those who may wish to see the union not continue be given no further ammunition for their cause.

Three amendments stand in my name and in the names of other noble Lords. The issue in Amendment 18 arose last night in relation to Clause 21. At the conclusion of the debate, the Minister said he would produce a memorandum which would try to explain why restrictions could not be placed on these powers. I still do not understand why not. These are a perfectly proper means of changing the devolution settlement. If the Governments of Wales, Scotland and Northern Ireland are agreeable, the Section 109 route—to take the example of Wales—will do so. I did not address this issue at any length because the better course is to await the memorandum which the Minister has promised to see how we might go forward.

On Amendment 23, I am very grateful for the assurance given and will consider that further. As to Amendment 45, the clause has no legal effect, but what is really important is that we try to show the people of Wales, of Scotland and of Ireland that things have changed. When we go forward as a United Kingdom, that is something that everyone, particularly those in London, should bear fully in mind. However, I am very grateful for all the speeches that have been made and in the light of the debate, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

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[Lord Judge (CB)]

My Lords, like the noble and learned Lord, Lord Neuberger, I too would welcome some clarity in this field, but I do not think that clarity can be provided by Ministers creating regulations behind the scenes and then serving them up to the House of Commons, which has not rejected any ministerial regulation since 1979, or this House, which has rejected them on minimal occasions, and by doing so in 2015 apparently caused a constitutional crisis. The issue is very simple. Of course there should be clarity and of course it should be provided by Parliament. We will now be considering what is domestic law. We call it EU case law, but the whole point of the process that we are going through is that it will become British EU-retained law. It will be British law and no longer EU law. It is that which will be interfered with.

I could spend some time going through the doctrines of precedents. They are very clear and simple. I remind the House that they have provided a way of achieving legal certainty. You can conduct your affairs with a degree of legal certainty. You can conduct your business, conduct your tax affairs and deal with foreigners outside this country. They tend to want to come to this country because the law is certain and clear. Yet simultaneously, and it is one of the great glories of our system, we have common law that goes back to 1189 that has enabled the law to develop, flourish and adapt as and when it became appropriate and necessary to do so. The greatest tribute to the common law is that it carries the day in all English-speaking countries. It is still used in India and Australia—adapted, of course, because that is one of its fundamental strengths, to conditions there.

I gave a lecture and talked to people who have suffered the horrendous problems of Bhopal, which not many of us will forget. There is a perfectly good legal principle—British, as it happens—called Rylands v Fletcher, which decided in Victorian times to create a new system. If you bring dangerous things on to your land, it is your job to keep them in, and if they get out, you are responsible. That was the common law working with absolute certainty to produce a new way of looking at the responsibilities of the landowner. So between them, the principles of legal certainty and the use of the common law enabled our law to develop.

Here, the noble and learned Lord the Minister, as the noble Lord, Lord Beith, reminded us, with his own personal experience, asserted on Monday by repeating that

“there is no intention on the part of the Government to extend the power to every court and tribunal in the land.”—[Official Report, 13/1/2020; col. 555.]

But that is the power that is being given by this legislation as it stands to a Minister. If that is not the Government’s intention, what on earth is the point of giving the power in the legislation to the Minister?

Where do we go? This permits the Minister to make regulations that would create jurisdiction in any court at any level to disapply retained EU case law, which is our law. Just think of the district judge sitting in, for example, Pontypool County Court, bound by all the decisions of all the courts above him or her by our own native law—Occupiers’ Liability Act, Unfair Contract Terms Act and even the Finance Act—who is then told, “Here is the EU case law. You are not bound by anyone’s decisions on that, so take a running jump at it.”

That in truth is what the poor judge will have to do. Think of his poor colleague in Penrith County Court, faced with a large organisation taking advantage of this new system by going to a small county court without the experience to respond to: “This bit of EU case law really troubles us. Your honour is not bound by it, so here are the reasons you should find for us.” To be fair, it could happen the other way around with a litigant who knows perfectly well that under case law he has no case, going to the same judge and saying, against a large business organisation, “They cannot rely on the case law any more, because you are not bound by it.” The same could happen in a tax tribunal or a VAT tribunal. All of this is quite unnecessary because, as the Minister has said, that is not the Government’s intention.

I would love to have a go at Henry VIII, whether he is filled with fat or with whatever drug to describe this condition today, but I am going to resist the temptation to do so, because I want the Government to realise that this is nothing more than a reasonable argument that needs to be addressed. All that is needed, without causing any delay to Brexit or creating a problem on 31 January, is for the Government to decide what arrangement should be put before Parliament in primary legislation to achieve the desired objective.

As an example, I did a bit of drafting last night so that they could say, “The Supreme Court and/or the Court of Appeal in England and Wales and the High Court of Justiciary in Scotland are not bound by retained EU case law”. Or the Government could say that those courts may depart from any retained EU case law if and when. It is not difficult, and I will offer myself to the Minister to sit down and talk it over with him if that would help. If Ministers are listening, perhaps that offer will be taken up. However, we have to address the principle, because the slightest incursion into judicial processes must be for Parliament, not for Ministers.

[Lord Thomas of Cwmgiedd]

Perhaps I may make some brief observations, in part in support of the underlying purpose of what the Government have said they want to do, but in total support of this amendment. As I understand the position, the Government want courts other than the Supreme Court or the High Court of Justiciary in Scotland to have power not to follow decisions of the CJEU on retained law. That is a purpose I support. In the course of the debate on the withdrawal Bill, in particular the Report stage in April 2018, I asked the Government to think again in relation to allowing the Court of Appeal in England and Wales, the Inner House in Scotland and the Court of Appeal in Northern Ireland to have this power.