Retained EU Law (Revocation and Reform) Bill

Viscount Hailsham Excerpts

Consideration of Commons amendments
Tuesday 6th June 2023 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I will very briefly support what the noble Lord, Lord Anderson, said. I agree with all of his detailed arguments, which were extraordinarily well put.

I will focus on two general points. First, in principle, I am very much in favour of increasing the control of Parliament over the legislative powers exercised by the Government. That is increasingly the case because Governments of all stripes are increasingly using secondary legislation to make very substantial changes to our laws. I want to see much greater parliamentary control.

Secondly, and differently, this issue goes to the amending power included in subsection (3) of the proposed new clause—I am very much in favour of that. For the many years I have been in Parliament, I have been deeply troubled by our inability to amend secondary legislation. What is being proposed by the noble Lord, Lord Anderson, is a mechanism; it may be rather a tricky one to use, but I hope it will be a precedent. It is one that I strongly support, because it is important for this House and the House of Commons to be able to amend statutory instruments. So if the noble Lord moves his amendment to a Division, I shall support it.

[Baroness Butler-Sloss (CB)]

My Lords, I too strongly support what the noble Lord, Lord Anderson, and the noble Viscount, Lord Hailsham, said. I cannot resist telling the House that I am chairman of the Ecclesiastical Committee, and some years ago the most reverend Primate the Archbishop of Canterbury was discussing a measure that was coming through our hands before going to Parliament, which had a clause that would allow the General Synod to make almost any changes to any law in England. We pointed out gently that it would not get through Parliament. Dear, oh dear, what are we talking about today? I would not have been quite as gung-ho about what could not happen in Parliament if I had come across this Bill and, I have to say, the Illegal Migration Bill.

The point that the noble and learned Lord, Lord Judge, was making about delegated powers—I remember that speech very well—is one that I am delighted the noble Lord, Lord Anderson, has taken up. The noble and learned Lord, Lord Judge, was saying that there will come a point when we will actually vote against secondary legislation—and maybe the time is just beginning to come. If we end up with having no power in Parliament, in either House, to decide whether laws that are different from those we have can be argued in either Chamber, what is the point of us being here? Consequently, I do feel that the House should support the noble Lord, Lord Anderson.

Retained EU Law (Revocation and Reform) Bill

Viscount Hailsham Excerpts

Report stage
Wednesday 17th May 2023 Lords Chamber

[Baroness Altmann (Con)]

My Lords, in principle I do not have an objection to the amendment that has been tabled by my noble friend Lady Noakes, supported by my other noble friends. The problem I have is in practice rather than in principle. How should Parliament and civil servants be spending their time, and do we trust that what is happening in terms of reviewing retained EU law will be done in the interests of parliamentary sovereignty and the interests of the public? There just seems to be underlying this whole Bill an ideological aversion to any EU-derived regulations. They are automatically considered to be harmful to the public, and that cannot be the case when we are potentially talking about legislation, regulations, public protections and legal rulings which have been relied on by the public and business since 1973.

I congratulate my right honourable friend the Secretary of State and my noble friend’s department for the common-sense change of approach involved in the amendments to this Bill. If I could be assured that Amendment 51A would not divert parliamentary and Civil Service time away from the important changes that are needed in the post-Brexit environment, then in principle I understand the logic and can accept it.

[Viscount Hailsham (Con)]

My Lords, may I just support what my noble friend has said? The task contemplated by Amendment 51A is immense, and I would have thought there were better uses of the Civil Service’s time.

[Lord Hope of Craighead (CB)]

My Lords, the amendment makes no reference to the devolved Administrations, and they have a considerable burden themselves to bear. I hope the Minister has been very careful to have regard to the interests of the devolved Administrations and will consider their position when he decides what to make of this amendment.

Retained EU Law (Revocation and Reform) Bill

Viscount Hailsham Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I think it will start our debate if I speak to Amendment 2 at this stage. That amendment, of course, is in my name and the names of the noble Lords, Lord Hamilton of Epsom and Lord Hodgson of Astley Abbotts.

I do not need to take up time by speaking to Amendments 10, 11 and 12 in this group—which are also in my name, and to which the noble Lord, Lord Murphy of Torfaen, and the noble Baronesses, Lady Randerson and Lady Humphreys, have added their names. The issues raised in Amendments 10 and 12 are no longer live in view of the removal of the sunset provision from Clause 1 and the Government’s proposal that Clause 3 should be deleted. This is also the case regarding the need to postpone the sunset date in the case of legislation relevant to common frameworks, which Amendment 11 seeks to do—although others of your Lordships may have something to say about this. Amendment 4 relates to a provision which the Government are proposing to remove from the Bill, so I do not need to say anything about that either. That leaves me with Amendment 2, to which I do wish to speak.

I am sure that I am not alone in welcoming government Amendments 1, 5, 12 and 68. This really is a victory for common sense. It was obvious to many of us in this House, especially those in touch with the devolved Administrations, that the scheme laid down in the Bill was never going to work within the time given to it. I reject the suggestion that the reason this is now being acknowledged is because of a failure of effort by civil servants. The fact is that however hard to civil servants tried, there was a real problem about getting the job done across all parts of the United Kingdom. There was always going to be a risk that work under the pressure of time would give rise to errors. Any error in this field, such as the removal of regulations that require or authorise the spending of money, could have grave consequences that could be hard to reverse. Care is needed, and that takes time. The devolved Administrations are in a particular difficulty. Their post-devolution regulations are not and cannot be listed on the dashboard; their legislative timetables are not equipped for the task within the timescale. That is the reality.

The Secretary of State deserves to be commended for the steps she has taken, but there remains a very significant gap which my amendments in this group—and in groups 3 and 6—are designed to address. This is that there is no provision for parliamentary scrutiny in the proper sense of those words. It is the greatest of ironies that taking back control over our laws—which is what Brexit was all about—has resulted in handing back this control to Ministers and civil servants, and not to Parliament. The parliamentary scrutiny over what they are doing is not there, other than in the most superficial way, as our power over delegated legislation is so limited. This has been described as an unprecedented transfer from Parliament to the Executive.

I think that all of us who were present at Second Reading can recall how strongly my noble and learned friend Lord Judge—whose absence I regret—felt about this subject. I am sure he would not object to my reminding your Lordships of what he said. It was short and to the point; it directed attention to what he thought was really happening. With his tongue firmly in his cheek, he said that he had received a letter by special messenger called “Restoring Parliamentary control”. It went over the key provisions of this Bill, one by one, and ended with this assertion:

“By agreeing to all these separate surrenders, Parliament will have taken back control. We trust you agree”.—[Official Report, 6/2/23; col. 1001.]


My Amendment 2 is based on amendments that were put down for Committee by my noble and learned friend Lord Judge, and my noble friend Lord Lisvane, who I am glad to see in his place. They provide for the referral of the list in the schedule to a Joint Committee of both Houses. In the event that the committee finds that the revocation of any item of legislation represents a substantial change of the law, it provides for that revocation to be debated on the Floor of each House and voted on.

[Viscount Hailsham (Con)]

The trigger point in the amendment is quite a narrow one: “substantial change”. Has the noble and learned Lord contemplated enlarging the power of the committee to require it to be put to the House if there was other substantial reason?

[Lord Hope of Craighead (CB)]

My Lords, “substantial change” probably accommodates what the noble Lord was thinking about. I am following a formula which the noble Lord, Lord Lisvane, thought was appropriate, bearing in mind that there are limits to the extent to which this House can lay down procedures for the other place.

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[Lord Lisvane (CB)]

My Lords, I thank the noble and learned Lord, Lord Hope, for his kind reference to what I said in Committee and subsequently. In order to set the mind of the noble Viscount at rest, I suggest that the wording relating to the Joint Committee in Amendment 2 is entirely correct.

It is a very bad idea to try to regulate parliamentary proceedings by means of statute, and it very often ends in tears or worse. In this case, should Amendment 2 survive into the final version of the Bill presented for assent, it will be for the Houses to set up a Joint Committee. That Joint Committee, following the ancient practice that the interpretation of the orders of reference of the committee are a matter for that committee, will take a view on what constitutes “substantial”, so there will be a certain amount of flexibility available at that point. It will also not be justiciable, because the operation of Article 9 of the Bill of Rights would prevent a court second-guessing what the committee decided.

[Viscount Hailsham (Con)]

I thank the noble Lord for giving way, and I hate to cross swords with him on this matter, but the trigger point of “substantial change” is quite narrow. My noble friend Lady McIntosh spoke about lack of consultation, or inadequate consultation. That might surely be a reason for using the trigger power.

[Lord Lisvane (CB)]

I absolutely agree and, as the noble Viscount has made clear, a number of things could be interpreted as of sufficient gravity to trigger, we hope, the powers in the Bill, then the Act, and it would be for the Joint Committee to decide—as a number of committees of your Lordships’ House already decide—that the lack of consultation is a serious flaw in the bringing forward of proposals for, for example, delegated legislation. So I hope I have set the noble Viscount’s mind at rest, but I am happy to talk to him outside the Chamber if further reassurance is required.

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[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak briefly to Amendment 14 in my name, to which the noble Baronesses, Lady Hayman of Ullock and Lady Altmann, and the noble Duke, the Duke of Wellington, have added their names.

I broadly welcome the government amendments tabled on 10 May but continue to be concerned about the ongoing lack of parliamentary scrutiny. While it is welcome that the Bathing Water Regulations 2013 and the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017 are not listed in the Government’s extensive list of statutory instruments to be deleted this year, this does not indicate whether at some future point these two SIs will not be brought forward for deletion without any parliamentary scrutiny.

Several Members of your Lordships’ House have spoken passionately and repeatedly about the need to improve water quality across all areas, especially, as we approach the warmer weather, through the Bathing Water Regulations. The noble Duke, the Duke of Wellington, has raised the issue of British surfers being forced to leave the country to pursue their sport in Spain due to the appalling level of pollution in and around our coastal waters caused by sewage overflows. While this subject is extremely important, I do not intend to expand the debate, given that both your Lordships and the Minister have heard all the arguments and evidence on previous occasions. That evidence has not changed. However, I am looking for a firm assurance from the Minister that both these statutory instruments will be retained on the statute book. This will ensure that our children and others can feel a degree of confidence when they swim in our coastal waters and inland lakes that they will not be damaged by an unpleasant environment and that their health will be preserved. I look forward to a positive response, and hope that I and others can be satisfied that the Government support the view of those for whom this is a vital issue.

[Viscount Hailsham (Con)]

My Lords, I have a very brief observation about Amendment 2, which I support and seems to have this other great advantage. Statutory instruments are largely drawn by officials and are not subject to great scrutiny by Ministers. That is my experience. Indeed, if noble Lords look at the schedule they will see a large number of statutory instruments. I very much doubt that Ministers have crawled over them in detail. If the trigger is exercised in accordance with the provisions of Amendment 2, Ministers will have to become engaged. It is much more likely at that point that you would get a proper response to the concerns expressed by the committee. That is an additional advantage that I would pray in aid.

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[Lord Hope of Craighead (CB)]

My Lords, I will speak to two amendments in this group: Amendment 15, which I am moving, and Amendment 76, which comes later in the Marshalled List; I shall explain what that is about. One or two ancillary amendments—Amendments 69, 73 and 74—are related to Amendment 76.

This group seeks to develop further the application to this Bill of the principle of parliamentary sovereignty. Amendment 15 is in the name of the noble Lord, Anderson of Ipswich. I added my name to it, as did the noble Lords, Lord Hamilton and Lord McLoughlin. The noble Lord, Lord Anderson, is not here today, so I am moving Amendment 15 on his behalf.

Amendment 15 is directed to Clause 4, which is headed “Sunset of retained EU rights, powers, liabilities etc”. I say to the noble Baroness, Lady Noakes, that this is an example of a sunset that is still in the Bill and which we are not disputing should remain in the Bill. It provides, first, that

“Section 4 of the European Union (Withdrawal) Act 2018 … is repealed at the end of 2023”.

It then provides that

“anything which, immediately before the end of 2023, is retained EU law by virtue of that section is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed)”.

The purpose of Amendment 15 is to provide a mechanism for parliamentary scrutiny of subsection (2). There could be a great deal of law hidden behind the clause which we cannot understand or see. Therefore, it should be fully investigated by the relevant committee. The mechanism that we propose in Amendment 15 is that the law that would be affected by Clause 4(2) must be identified by the making of a Statement to Parliament before the end of October, which would then provide a basis for the matter to be debated in both Houses. The purpose of the amendment is simply to close a gap that might otherwise remain in the need for effective scrutiny.

I shall not take up time by reading out the whole of Amendment 15 as your Lordships can see what is there, but the explanatory statement says that it is modelled on the amendment to Clause 1, in my name, which has just been agreed by your Lordships,

“to enable Parliament and the devolved legislatures, not the Executive, to have the final decision as to whether or not rights, powers, liabilities … should be revoked at the end of 2023”.

I think that is all I need to say about Amendment 15. I do not want to take up further time by adding more to what I have said.

Amendment 76 in my name, along with—as I have said—those of the noble Lords, Lord Hamilton, Lord McLoughlin, and Lord Anderson, is very important because it is directed to the very heart of the Bill; this lies beyond the schedule that we will be looking at and beyond Clause 4, to which I have just been referring. It is directed to Clauses 13, 14 and 16.

I remind your Lordships that Clause 13 is headed “Power to restate retained EU law”. Clause 14 is headed “Power to restate assimilated law or reproduce sunsetted retained EU rights, powers, liabilities etc”, and Clause 16 is described as “Powers to revoke or replace”. These are extremely important powers that, as the Bill stands, are to be exercised by statutory instrument, not subject to parliamentary scrutiny, which is what we are seeking to do.

I do not wish to go over the arguments that we have debated so fully today, beyond emphasising that these are very far-reaching powers that will result in a complete rewriting of much of the law that we have kept on our departure from the EU. We do not dispute the need to do that—there has been a good deal of reference already today to the importance and indeed necessity of carrying out these exercises—but our point is that that cannot be left entirely to Ministers and civil servants without proper parliamentary scrutiny.

Amendment 76 is once again based on an amendment proposed by the noble Lord, Lord Lisvane, in Committee. It would provide for any instruments made under these three clauses to be referred to a Joint Committee of both Houses for scrutiny. Again, if that committee found that the regulations represented a substantial change to the preceding EU law or that sufficient public consultation had not been carried out, a Minister of the Crown would have to arrange for the instrument to be debated on the Floor of each House. It is contemplated that the Houses may agree to amendments, whether or not proposed by the Joint Committee.

Of course, the Minister may come up with a better scheme for subjecting those regulations to effective public scrutiny, but this is the best that, with the assistance of the noble Lord, Lord Lisvane, we have been able to devise. We have tried to keep the procedure as quick and simple as possible without disturbing the sunsetting provisions in the clauses and we are reasonably sure, on the advice of the noble Lord, that our proposal will meet these requirements.

[Viscount Hailsham (Con)]

Could the noble and learned Lord deal more fully with the amendment provision? It is a most interesting provision because hitherto my understanding has always been that statutory instruments cannot be amended. What is proposed in new paragraph 8A(3) in Amendment 76 is a power to amend a statutory instrument. I would like to know—

[Lord Harlech (Con)]

My Lords, could I ask my noble friend to turn around and address the House?

[Viscount Hailsham (Con)]

I am so sorry. Being rather deaf, I have to listen to what the noble and learned Lord is saying by turning towards him. I apologise. I would like to know—[Laughter] I am doing it again. I would like to know what the procedure is. Is it precedented, or is it a new concept that the House is being asked to contemplate—namely, the power to amend statutory instruments?

[Lord Hope of Craighead (CB)]

My Lords, the amendment, which I invite the noble Viscount to look at more closely, is carefully worded. All we say is that if any amendments to the regulations are agreed to—we have to be extremely careful in our proposal because we cannot direct what a Joint Committee of both Houses is going to do, which is a matter for it—we suggest that the committee may feel it appropriate to recommend that amendments should be laid. That is a matter for the Joint Committee. We are not giving a power ourselves but handing it over to the Joint Committee, which I think the noble Lord, Lord Lisvane, will confirm.

[Viscount Hailsham (Con)]

I am sorry to press the noble and learned Lord—while looking straight at your Lordships’ House—but is the concept that there will then be on the Order Paper proposed amendments to the statutory instrument, or will there be an informal recommendation by the Select Committee? Those are not the same things. I would be very pleased if they were a power to amend statutory instruments, and I would really like to know what procedure is contemplated.

[Lord Lisvane (CB)]

It is with a certain amount of trepidation that I seek to answer the question. The noble and learned Lord, Lord Hope, will correct me if I am wrong, but as I understand it the idea is that the amendments—which might come from the Joint Committee or from another source, as foreseen in sub-paragraph (3) in the amendment—would come forward and could be to put to either House or both Houses as Motions that a certain order should be laid in a form so amended. If that Motion was agreed to—it is a sidestep procedurally because it is not acting on the text of the order itself—and the will of either House was that there should be such amendments then it would be for Ministers to re-lay the order, taking those amendments and the decision of the House or Houses into account.

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[Lord Hodgson of Astley Abbotts (Con)]

My Lords, we have had two significant amendments proposed by the noble and learned Lord. I have Amendments 73 and 74 in this group, which are small and technical but significant in the way in which they try to enhance the scrutiny provisions that underlie the noble and learned Lord’s two amendments, which I entirely support. I will not repeat my reasons because I would be largely rehearsing the arguments that I made an hour and a half ago.

It is generally anticipated, though not certain, that the Secondary Legislation Scrutiny Committee will be one of the bodies appointed to carry out some scrutiny of the regulations, as and when this particular part of the Bill comes into force. The Bill as drafted envisages a period of 10 working days for a report to be produced by the SLSC that would then come before the House, and the House would make its mind up about its view of that report on the instrument. The Government use the example—the dreaded precedent—of the 10-day period provided under the European Union (Withdrawal) Act 2018. In the SLSC report that I referred to earlier, we proposed that the period should be extended from 10 days to 15. We said in paragraph 58:

“We know from our own experience in scrutinising proposed negatives under the 2018 Act that, depending on the day of the week on which a proposed negative has been laid, meeting that 10-day deadline could be challenging”.


Under the Bill, the regulations to be scrutinised are of an entirely different level of policy implication, importance and significance. This view and the proposal for a five-day extension—by no means a huge length of time—have been endorsed by the Hansard Society, which Members of the House will be aware is an academic expert in matters of parliamentary procedure.

In Committee on this Bill on 8 March, at col. 876, my noble friend, having heard the debate on these amendments, was kind enough to offer to go away and reflect. I have no doubt that he did his level best, but I fear that he was rebuffed because the Government said in their response to the SLSC report of 10 May:

“Having considered this carefully and in particular how the existing 10 day sifting practice works, the Government remains of the view that a 10 day sifting period is sufficient for SIs laid using the powers in the Retained EU Law Bill … The retained EU Law programme is a similar challenge”—


to 2018—

“but it is no more complex or demanding”.

I have just two points on that. First, to describe this Bill as no more complex and demanding, compared to that of 2018, is, I am afraid, plain wrong. It is a much more significant piece of legislation than the 2018 Act. Secondly, the members of the SLSC do not come to this view ex cathedra. We think about it, but we also talk and take into account the views of the highly experienced and dedicated staff, who produce excellent reports which come before your Lordships’ House every week.

To conclude, I suppose I could just about have got my mind around my noble friend’s view that it should be 10 days after all when we were under the cosh of the 31 December drop-dead end date. We do not have that now, so the time pressure that was otherwise going to be imposed has now been released and reviewed. I urge my noble friend to go back to the chateau behind the lines and ask the general commanding to think again. If the Government do not think again, it will be yet another example of how they appear intent on marginalising Parliament at every single opportunity.

[Viscount Hailsham (Con)]

My Lords, if I might briefly comment on the suggestion of the noble and learned Lord, Lord Hope, about amendments—

[Lord Harlech (Con)]

My Lords, the guidance in the Companion states that, on Report, Members are asked to make their reflections once.

[Viscount Hailsham (Con)]

But I asked a question; I did not make a speech before. The question is one that I want to emphasise now.

Time and time again, this House has had to address the ability of Parliament to amend statutory instruments. The explanation given by the noble and learned Lord, and by the noble Lord, Lord Lisvane, makes it plain that on the question of amendments, we have to rely entirely on the good faith and discretion of the Minister. What in fact was being said by the noble Lord, Lord Lisvane—I am grateful to him—is that the House, by a Motion, can express a view but the ability to change the statutory instrument depends on—

[Baroness Williams of Trafford (Con)]

My Lords, I think my noble friend is actually making a statement.

[Viscount Hailsham (Con)]

I am making a speech, not a statement. I do not think I know the difference between the two. I was making a contribution in the debate.

What the noble and learned Lord and the noble Lord have demonstrated is that the ability to amend statutory instruments is dependent upon the discretion of the Secretary of State. I have long taken the view, and I hope your Lordships would agree that, especially when you have so many statutory instruments, this House should be able to amend them—

[Baroness Williams of Trafford (Con)]

My noble friend is making a statement. He is not asking a question, and we should let others get on with their one speech.

Retained EU Law (Revocation and Reform) Bill

Viscount Hailsham Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I agree with what has just been said by the noble Baroness, Lady McIntosh, and I speak only with reference to the Court of Appeal of England and Wales, of which I was a member for about nine years. We regularly considered cases from all over the world—the High Court of Australia, the Supreme Court of the United States, the Hong Kong Court of Final Appeal, or any court that had similar law to the law of England and Wales. We considered them, but none of them was, or is today, binding. It is absolutely unnecessary to put this in, and I have to say I find it offensive to judges who have treated these cases in the way I have just explained for many years. I was on the Bench for 35 years, and I looked at these cases many times. I would be offended to be told I could not apply them as part of English law, because I knew that from my childhood, for goodness’ sake.

[Viscount Hailsham (Con)]

My Lords, I am going to speak briefly about Amendments 83, 84, 87, 87A and 87B. I do so as a jobbing barrister, with some diffidence, because I note that the noble and learned Lords who have put their names to these amendments have not yet spoken. Indeed, I do not think they are in the Chamber. I am against the provisions in the Bill, and I am going to outline my reasons.

When drafting legislation, we need to ensure clarity. Laws need to be clear, unambiguous and capable of being understood by members of the public, otherwise compliance is impossible. Furthermore, to ensure justice, advisers need a degree of certainty and predictability as to what the law is or is likely to be when they have to advise on it, otherwise, as I say, justice will not happen. When one applies those criteria to the provisions in the Bill, one becomes profoundly uneasy. The phrase found in new paragraph (b) in Clause 7(3), “any changes of circumstances”, is astonishingly broad. It would apply to any change of circumstance without any regard to degree or nature.

The same sort of criticism applies to new paragraph (c), on

“the extent to which the retained EU case law restricts the proper development of domestic law.”

But what do we mean by “proper development” of domestic law? Who is to judge what is proper? Are we to contemplate judge-made or statute law, which are extraordinarily different? Does this concept not drag judges into political and perhaps partisan areas? A determination by a judge on what the law ought to be is, in many senses, to intrude into a political decision that judges would be well advised to avoid.

Precisely the same criticisms apply to the word “influenced” in new paragraph (a) in Clause 7(4), to which Amendment 87 applies. They also apply to the phrase “would depart”, to which Amendment 87A applies. Giving practical interpretation or advice on the meaning of these words is almost impossible, which inevitably impacts on compliance by individuals and the doing of justice by the courts. For the reasons that I have briefly outlined, these proposed provisions, as presently incorporated in the Bill, are profoundly objectionable and should not feature in this legislation—but, in conclusion, I say that this applies to the entirety of the Bill.

[Lord Etherton (CB)]

My Lords, as a result of the lack of time to address the amendments to Clause 7 last Thursday, the noble and learned Lords, Lord Judge, Lord Hope and Lord Thomas of Cwmgiedd, are not able to speak to the amendments to Clause 7 in their names. As your Lordships will see, I have been asked to do so on their behalf. These are Amendments 83, 87, 87A, 87B, 90, 91 and 93. I will also support Amendments 85 and 88 in the name of the noble Baroness, Lady Ludford. A number of these amendments are quite technical so, rather than weary the House with detailed observations on each of them, I will take a broad approach, in the hope that the Minister will permit a meeting when the others can be elaborated further.

Broadly speaking, the amendments fall into two parts, the first of which comprises amendments to the provisions in Clause 7(3) and (4), about the circumstances in which the court may depart from retained EU case law and retained domestic case law—these are Amendments 83 to 89. The second group concerns the procedure on references of points of law arising from retained law in lower courts or tribunals—this is in Clause 7(8). Like many of the earlier provisions of the Bill that were discussed, the issue of legal certainty runs through the first group of amendments. They either involve removing provisions that create uncertainty, or invite the insertion of new provisions to bolster certainty and predictability. The noble Viscount, Lord Hailsham, referred to one of the most egregious of these tests: that of

“any changes of circumstances which are relevant to the retained EU … law”—

this is in Clause 7(3), which inserts new Section 6(5)(b) into the 2018 Act. I also cite another test:

“any changes of circumstances which are relevant to the retained domestic case law”—

this is in Clause 7(4), which inserts new Section 6(5ZA)(b) into the 2018 Act. These are too wide, too uncertain and, above all, subjective.

Looking at the issue from a slightly different perspective from those that have been debated in the past, I will concentrate, in broad terms, on the position of UK plc. Legal certainty is critical to the position of the courts of this country as one of the most important litigation centres in the world. The United Kingdom attracts international disputes of huge value and complexity because of the intellectual standard of the judges in our higher courts, the absence of corruption in the judiciary and, critically, the predictability and certainty of our legal principles.

This is true not only of general business cases but of particular specialist areas, such as intellectual property. These cases contribute very large amounts to our GDP through the engagement of lawyers, bankers, accountants, experts and other relevant disciplines. In its report, published on 7 December 2022, TheCityUK stated:

“Legal services contributed £30.7 billion to the UK economy in 2021”,


posting a trade surplus of £5.4 billion, and:

“Parties from 75 countries used the Commercial Courts in 2021/22”.


It continued:

“The UK is the largest legal services market in Europe (valued at £41 billion in 2021) and is second only to the US globally.”


Unpredictability and uncertainty in the law and dispute resolution put this pre-eminence at risk. As a country, we cannot afford to allow that to happen.

In large international cases, the claimants usually have a choice of places in which to litigate. The idea that existing law can be departed from because of any changes in circumstances which the court may consider relevant—which could include, for example, the political manifesto or aspirations of the Government of the day or some new government policy—would greatly undermine the attractiveness of this jurisdiction.

I will illustrate this briefly by reference to what, in the case of many major businesses, is one of their most important assets: their intellectual property. Our trademark law is derived entirely from EU law. Our Trade Marks Act 1994 gives effect to an EU directive. Since its enactment, the case law has been determined partly by EU case law, especially where there has been a preliminary reference to the Court of Justice of the European Union or an appeal to the Court of Justice of the European Union from the EU Intellectual Property Office, and partly by our domestic law in interpreting and applying the 1994 Act. In fact, there is a huge body of EU law relevant to trademarks; it therefore falls squarely within Clause 7 of the Bill and the amendments to the 2018 Act introducing the “any change of circumstances” test.

Large international companies, such as Sony, Nokia, Eli Lilly or Pfizer, to name but a few, which conduct their business in many countries across the world, generally have a choice as to the country in which they wish to bring their proceedings. Although, strictly speaking, each country can only make decisions limited to its territorial boundaries, a decision in any one of the major IP litigation centres, such as France, Germany, the Netherlands or the United Kingdom, will be accepted as determinative everywhere. The fact is that, if there is a broad, unlimited “change of circumstances” principle for departing from the existing law, one of the parties to the litigation will almost always invoke it. If they do so, and do so successfully, there is absolutely no certainty as to what would replace the existing law. All this would fatally undermine the certainty of our law and be a huge disincentive to litigating in this country when another is available.

The same is equally true of design law and registered designs. In this country, that law, set out in the Registered Designs Act 1949, has been substantially rewritten, particularly in relation to what is a registrable design, to give effect to an EU directive. This is also true of large parts of our law relating to copyright. The word “influenced” in the proposed new Section 6(5ZA)(a)—see Amendment 87—has been referred to earlier in today’s debates. It would, in some trademark, design and copyright cases, be difficult now to disentangle which parts of the law have been influenced by EU law and which are purely domestic in origin.

In the area of patent law, the same position applies in relation to supplementary protection certificates, which operate to extend the patent in certain circumstances. Litigation in these areas of the law can be of huge value and economic significance.

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[Baroness Ludford (LD)]

My Lords, I shall speak to Amendments 85 and 88, as a co-signatory of both those amendments, led by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot be here today. He has been kind enough to share his thinking with me.

[Viscount Hailsham (Con)]

And his notes, by the look of it.

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[Viscount Hailsham (Con)]

The noble Baroness is entirely right about the leap into the unknown. Does this not emphasise the point that members of the public cannot understand what the law is? That prejudices compliance and the ability of advisers to give good advice.

[Baroness Ludford (LD)]

The noble Viscount is absolutely right, and I agreed with every word of his earlier contribution.

What the amendments do, instead having of a one-way impetus to the judges, is to introduce some balance to the exercise. Both these amendments would introduce two factors—they are repeated for the two scenarios—which might incline the judge in favour of caution:

“the consequences of disturbing a settled understanding of the law”

and

“the importance of legal certainty, clarity and predictability”.

The amendments give the judges more space for their judgment, which is—I am quoting the notes of the noble Lord, Lord Anderson—“after all what judges are for”. What is the point of having judges if all they have to do is read the Retained EU Law (Revocation and Reform) Bill? Good luck with that.

Then the noble Lord, Lord Anderson, says of the quotation and reference in the Explanatory Notes to the Court of Appeal case of TuneIn Inc v Warner Music Ltd that “this, I am afraid, is disingenuous and I do hope the Minister will not repeat it from the Dispatch Box”. I am looking at the Minister—the noble and learned Lord, Lord Bellamy—and hoping that he does not do that, because TuneIn was a case in which the Court of Appeal decided not to depart from the jurisprudence of the CJEU for a number of reasons which were carefully enumerated. One decisive factor was that to

“return to the drawing board and start all over again … would create considerable legal uncertainty”.

So, the judges are stressing continuity, predictability, being able to weigh up factors and not being constrained. I say to the noble Lord, Lord Hodgson, with respect, that he has got this wrong: if you say that the judges must do something and allow them to take into account only certain factors, it does not allow them to exercise their training and judgment. That is what we pay them for: to continue the law to provide the predictability that we need.

I finish by conveying that the noble Lord, Lord Anderson, wanted to register his strong support for Amendments 90 to 93 in the names of the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The noble Lord, Lord Anderson, said: “They know a thing or two about the pressures of business in the highest courts, and this Bill is going to create a tsunami of business for lawyers. A sturdy floodgate is needed if those courts are not to be swamped, and these amendments provide one.” I respectfully recommend these amendments to the Committee.

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This is, if I may say so, a term of art. It has been used in case law ever since the House of Lords decided in 1966 to diverge from its previous decisions. It was referred to by Lord Reid. That is not the present noble and learned Lord, Lord Reed, but James Reid, the brilliant Scottish judge; possibly interestingly for Scotland, the best common lawyer we had in the previous century was Scottish. “The proper development of the law” means what the courts feel is the right way to take the law at that particular moment. If you say “restricts any development of domestic law”, you are back where you started because any existing case law in a sense restricts development, so it is necessary to have the word “proper” in the statute.

[Viscount Hailsham (Con)]

It also clearly extends to statute-based law. Is that not a case for bringing the courts into expressing a view as to what is essentially the function of Parliament?

[Lord Bellamy (Con)]

My Lords, the courts are always astute. They sort of intuitively know where they have to stop and where Parliament has to take over. That is a process that has been honed and refined for the past 100 years at least, but it does not prevent the courts moulding, refining and developing the common law. There comes a point where you cannot go further, but quite often in a court you can, especially when you have existing jurisprudence. It is quite early on in the development of a new technology. In the Warner case, we were talking about hyperlinks, graphic interfaces and all sorts of high-technology things with which I am sure your Lordships are extremely familiar, but it is a new area of law, and the courts, generally speaking, work with that until they find that they have gone as far as they can as a court and then Parliament takes over. With respect, I would not completely accept the observation of my noble friend Lord Hailsham that this is usurping Parliament.

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[Lord Bellamy (Con)]

I am sorry. I am rather nervous when noble Lords come at me from all directions, especially the noble Viscount, Lord Hailsham.

[Viscount Hailsham (Con)]

I am so sorry. I did not mean to interrupt.

[Lord Bellamy (Con)]

That is quite all right.

This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.

Retained EU Law (Revocation and Reform) Bill

Viscount Hailsham Excerpts

Committee stage
Tuesday 28th February 2023 Lords Chamber

[Lord Deben (Con)]

I am talking about the left-hand side of the road and the first amendment is about motor vehicles. The second one is dealing with the rules of the compensation system for passengers. I say to my noble friend that this is a series of amendments to draw attention to the fact that the Bill does not follow a sensible programme of defining “burdens”. We have just had a letter about it, and I intend to talk about that letter. The fact of the matter is that this is not a sensible way of defining “burdens”. “Burdens” should be defined by whether they are a burden or not.

I come to the examples here. It is inconceivable that the Government will remove the requirement for a child to wear a seat belt, so why do we have to consider it at all? Why do we not accept that we should keep many of the things that we have? We have now thrown into doubt a whole detailed series of regulations that, if I may say so, will not be changed. But we do not know that, and we do not know which ones will be changed. We are now suggesting that this discussion will be conducted by civil servants and, in the end, Ministers.

[Viscount Hailsham (Con)]

My noble friend is making a serious point—namely, that we do not know the identity of the regulations that will be in doubt. But the point here is that, if you do not know the identity of the regulations, you cannot consult the stakeholders, which is a very serious deficit.

[Lord Deben (Con)]

It is a very serious deficit. I will apply it to this amendment, as my noble friend the Whip insisted. I have chosen this amendment because it is so obviously true that the Government will not change that requirement, so why do we throw this into doubt? Why do we say to civil servants that they have to go through all this in a very short period of time, including requirements that we will not change? As chairman of the Climate Change Committee, I am aware that almost all departments are struggling to do what they have to do anyway. If we add this, they will do it rather than what they ought to do—and what I, as chairman, am desperate for Defra, for example, to do—because this has a sunset clause.

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[Viscount Hailsham (Con)]

I suggest to the noble Baroness that this is about the Government allowing themselves wriggle room.

[Baroness Ludford (LD)]

I could not possibly comment on any wriggle room that the Government are giving themselves. However, because there is some justice in what the noble Viscount has said, I still want an explanation on the record from the Minister of how it can be authoritative if it is not comprehensive. Indeed, it cannot be authoritative at the moment because we know that it is still in the process of being added to.

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[Viscount Hailsham (Con)]

There is also the problem of gold plating. I was very familiar with that when I was in the Ministry of Agriculture. Very often, officials did more than was required by the European Union. At that point, one has the interesting question of whether it is EU law or ours.

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[Baroness Neville-Rolfe (Con)]

We can confirm that it is authoritative. The version that will come out in the spring—the next version—will be authoritative. The comprehensiveness of it will come when the archives have finished their process and so on. A lot has been made of this point, frankly. The key regulations are on the dashboard; for me, the key thing that matters is what departments do with them.

[Viscount Hailsham (Con)]

Can my noble friend confirm that there will be consultation?

[Baroness Neville-Rolfe (Con)]

If we have new regulations then the normal form in departments is to consult on them.

[Viscount Hailsham (Con)]

Will they have time within the deadline?

[Baroness Neville-Rolfe (Con)]

The Bill sunsets in 2023.

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[Baroness Neville-Rolfe (Con)]

It is the gentlemen and ladies in Whitehall and in the European Commission. If I may, rather than prolong this discussion, I will reflect on the point that the noble Lord has made.

[Viscount Hailsham (Con)]

The noble Baroness could say that the Government will support Amendment 32, which would enable Parliament to have a word in the matter.

[Lord Wilson of Dinton (CB)]

I have listened to this debate and some important points are still left in the air. I may be slow, but there is an awful lot that I still do not understand, which needs to be resolved. Would it not be better—I have said this before—for the Bill to be withdrawn and for the Government to do the work and then come back and tell us what they want to keep, abolish and amend? If they cannot withdraw the Bill, put it on ice. We have a good precedent for putting Bills on ice. Why do the Government not do the work, rather than trying to grapple with questions that are almost unanswerable?