Retained EU Law (Revocation and Reform) Bill

Debate between Viscount Hailsham and Lord Callanan

2nd reading
Monday 6th February 2023 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, before I get into my speech, I note with great anticipation that we will be hearing not one but two maiden speeches today. We are indeed blessed. Let me first warmly welcome my noble friend Lady Bray of Coln and the noble Baroness, Lady O’Grady of Upper Holloway. I am delighted to note that Lady O’Grady has come from advocating for a people’s assembly in 2013 to joining us here today—quite the journey. I look forward to both their contributions to this debate.

First, I thank the Minister for Industry and Investment Security for ensuring that the Bill has been sent to us in this place following much reasoned and thorough debate in the other place. At all stages there were commitments made across a number of issues, including our international obligations, employment rights and environmental protections. I reiterate those commitments now and of course will continue to do so throughout the passage of the Bill.

The retained EU law Bill is the next step in reasserting the sovereignty of Parliament and untangling the United Kingdom from nearly 50 years of EU membership. Retained EU law was never intended to sit on our statute book indefinitely. Indeed, the time is now right to review retained EU law and end it as a special legal category. The Bill will achieve this by enabling the Government to more easily amend, revoke or replace retained EU law by the end of 2023. This will ensure that the Government are able to create legislation which better suits the UK without taking decades of parliamentary time to achieve.

The Bill enables the UK to fully grasp the myriad opportunities to create modern and agile regulation, to support the ambitions of our sovereign nation. There are countless opportunities for reform ahead of us, ranging from financial services to data, and from artificial intelligence to transport and energy. Through the Bill, the Government will work to develop a new, pro-growth, high-standards regulatory framework that gives businesses the confidence to innovate, invest, scale up and therefore to create more jobs.

Clause 1 lays the groundwork for an ambitious and efficient overhaul of all retained EU law. It establishes 31 December 2023 as the sunset date on which retained EU law will cease to exist, unless there is further action by government and Parliament to preserve it as “assimilated law” without its special EU law features. In this way, the sunset ensures that outdated and unnecessary laws are quickly and easily repealed. It will also provide government departments with a clear timeline to seize reform opportunities. Indeed, a sunset is the quickest and most effective way to accelerate reform across over 400 policy areas and deliver the rapid repeal of retained EU law.

It is only right to set the sunset of retained EU law as the default position. This ensures that we are proactively choosing to preserve laws inherited from our membership of the EU only where they work in the best interests of the United Kingdom. Some retained EU law is of course inoperable and removing it from the statute book is merely good democratic governance.

The sunset extension mechanism, found in Clause 2, will allow specified instruments or specified descriptions of retained EU law to continue in force beyond the sunset date where that is necessary and in our interests. The sunset date cannot be extended beyond the end of 23 June 2026. It is my hope that this clause proves unnecessary, but it would be irresponsible not to include a clause to allow for unforeseen circumstances. Together, these two clauses will facilitate reforms that will help to grow our economy, deliver the opportunities Brexit provides and support advances in technology and science.

From the end of 2023, the Bill will end the special status of retained EU law on our statute book. Clauses 3 to 5 will ensure that EU rights, obligations and remedies retained by Section 4 of the withdrawal Act will cease to apply and that the application of the principle of supremacy and general principles of EU law as rules of interpretation will end. The retention of these principles provided legal continuity at the end of the transition period, but it would be constitutionally inappropriate to leave these retained EU law principles on the UK statute book in perpetuity. In many cases, the principles and rights in question already overlap with well-established provisions in domestic law. This has the potential to undermine the clarity of our law. To reflect these changes, Clause 6 renames retained EU law which has not been sunset as “assimilated law” after the end of 2023. This is not, as some have said, a simple “rebranding” exercise but is a new body of law without the EU law rules of interpretation.

Where further provision is necessary, the Bill provides powers in Clause 8 and Clauses 12 to 14 to codify specific rights and interpretive effects clearly and accessibly in domestic statute. We are proud of the history of the UK legal system, in which common-law principles and legislation are well established. These reforms will continue that tradition and ensure that our law continues to develop as one best suited to the UK context.

Past judgments of the courts have set too high a bar for UK courts to depart from retained case law and the judgments of EU courts. Now that we have left the European Union, we must reassess when it is right to depart from retained case law and establish more UK-focused precedents. The retained EU law Bill will free our courts to develop case law on retained EU law in a way that is right for the United Kingdom. Clause 7 introduces new tests for higher courts to apply when considering departure from retained case law. The tests give higher courts greater clarity on the factors to consider, and greater freedom to decide when it is appropriate to depart from that retained case law. The clause will also facilitate more decisions on departure from retained case law. It empowers lower courts to refer points of law to higher courts for a decision on whether to depart. It also confers on the law officers of the UK and on the devolved Governments similar reference powers and gives them the right to join cases to argue with regard to departure from retained case law.

Clause 9 gives the judiciary powers in connection with the ending of the supremacy of EU law. Courts and tribunals will issue incompatibility orders and will be able to grant appropriate remedies in legal proceedings where retained direct EU legislation cannot be read consistently with other pieces of domestic legislation.

Retained direct EU legislation, composed mainly of EU regulations over which the UK Parliament had no real say, often does not reflect the UK’s priorities or objectives to drive growth. We are currently forced to treat some of this legislation as equivalent to an Act of Parliament when amending it. This limits our ability to make vital reforms and is constitutionally inappropriate.

[Viscount Hailsham (Con)]

In respect of the legislation that is to be revoked or re-enacted, is my noble friend going to tell the House what consultation there will be with the various stakeholders, who must run into the thousands?

[Lord Callanan (Con)]

When secondary law is implemented there is a well-established procedure for appropriate consultations, which of course will take place. All those stakeholders are able to have their say through many Members of both Houses of Parliament as well.

Clause 10 will therefore ensure that retained direct principal EU legislation and Section 4 EU withdrawal Act rights are downgraded, ensuring that they are treated as equivalent to secondary legislation for the purposes of amendment.

It is critical to ensure that this body of law can be updated, amended and reformed using appropriate delegated powers. Without these measures, thousands of regulations will become stagnant—unable to stay up to date, react to new information or implement new international agreements without requiring a new Act of Parliament. Clauses 10 and 11 support this Government’s commitment to taking the necessary steps to put the UK statute book on a sustainable footing, guaranteeing that we can seize all the opportunities that leaving the EU supplies.

The powers in the Bill, combined with the downgrading of retained direct principal legislation, will make it easier for Ministers to amend or repeal retained EU law without the need for primary legislation. The powers have also been designed to deal with matters arising in relation to the sunset and the ending of retained EU law as a legal category at the end of 2023. It has become increasingly clear that there is a lack of subordinate legislation-making powers to remove retained EU law from the statute book. It is appropriate to take powers in the Bill to address this.

The retained EU law dashboard has identified over 3,700 pieces of retained EU law across 16 departments. While some of these laws will be preserved, of course, many are outdated, some are unduly burdensome, and others are increasingly unsuited to the UK’s economic circumstances. Therefore, it is necessary to have powers in the Bill that are capable of acting on a wide range of retained EU law covering a variety of different policy areas. This is not a power grab by the Government.

Hospitality Industry

Debate between Viscount Hailsham and Lord Callanan

Tuesday 24th January 2023 Lords Chamber

[Lord Callanan (Con)]

The noble Baroness makes a good point. We will certainly keep the hospitality strategy under review. It is worth recognising that we have offered considerable support to the sector, as we have to all businesses. I am afraid that we cannot continue to provide such levels of support. Nevertheless, support is available through business rates relief and other policies, and we continue to liaise closely with the sector.

[Viscount Hailsham (Con)]

My Lords, would it not be helpful to make an assessment of the impact on the livelihood of those who work in the hospitality sector of the damage caused by the strikes on the railways?

[Lord Callanan (Con)]

My noble friend makes an important point. The sector estimates that the railway strikes have cost it over £1 billion in lost revenue during the strike period, so they do have a significant impact.

European Union (Withdrawal Agreement) Bill

Debate between Viscount Hailsham and Lord Callanan

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

[Lord Callanan]

I am grateful to the noble Lord, Lord Newby, the noble Baroness, Lady Hayter, my noble friend Lord Hailsham and others who have contributed to this debate. I think the key point was made by noble friend Lord Bridges: the manifesto on which my party won the election that delivered a substantial majority for this Government was absolutely explicit in ruling out any extension to the implementation period. The general election has clearly shown that the public support that vision. I say gently to the noble Lord, Lord Newby, that his party put forward an alternative vision that was comprehensively rejected by the public. This clause implements that provision. It binds the Government to this commitment by enshrining in statute that Ministers may not agree to the extension of the implementation period beyond 2020.

I reassure noble Lords that in the withdrawal agreement both sides—we and the EU—have committed to using their “best endeavours” to negotiate a future partnership. Moreover, both the EU and the UK committed to agreeing a deal by the end of 2020 in the political declaration. It is worth quoting from paragraph 135, which says that,

“it is the clear intent of both Parties to develop in good faith agreements giving effect to this relationship and to begin the formal process of negotiations as soon as possible after the United Kingdom’s withdrawal from the Union, such that they can come into force by the end of 2020.”

This clause provides both parties absolute clarity on the timetable for negotiations. This will help ensure that our negotiations can progress at pace and that we have our future relationship agreed by December 2020. It is in the interests of the UK and the EU to agree a deal that supports the flow of goods, the provision of services and business being done. That is what we are going to do.

In sum, this clause delivers on our manifesto commitment to the British public not to extend the implementation period beyond 2020.

[Viscount Hailsham]

Would my noble friend tell the House whether he thinks there are any negotiating advantages that flow from this clause?

[Lord Callanan]

It definitely concentrates the minds of both parties. As I said, it has been explicitly agreed in both the withdrawal agreement and the political declaration, as I have quoted, by us and the European Union.

It will ensure that we can move on with negotiating a future relationship with absolute clarity on the timetable. For this reason, the clause must stand part of the Bill. With regard to the questions of the noble Baroness, Lady Hayter, about the EEA and the Scottish Law Society, I will write to her.

Brexit

Debate between Viscount Hailsham and Lord Callanan

Monday 25th March 2019 Lords Chamber

[Lord Callanan]

The statutory instrument has already been laid. It reflects the decision of the European Council, so both potential dates are included as options, depending on whether the meaningful vote is approved—not necessarily tomorrow but this week. That was the decision laid down by the Council and agreed to by the Prime Minister.

In response to the questions asked by my noble friend Lord Hailsham and the noble Baroness, Lady Ludford, no deal remains the legal default at 11 pm on 12 April, if that is where we end up. The Prime Minister was simply stating that Parliament is likely to intervene to prevent no deal, if a deal has not been agreed by then. This is in line with her comments on 26 February, when she told the House of Commons:

“So the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome”.—[Official Report, Commons, 26/2/19; col. 166.]

[Viscount Hailsham]

Is my noble friend saying that, in order to secure a no-deal Brexit, the House of Commons has to approve that affirmatively?

[Lord Callanan]

I do not want to go further than the comments of the Prime Minister which I have just quoted. This is in line with her comments on 26 February, when she said:

“So the United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome”.—[Official Report, Commons, 26/2/19; col. 166.]


I will reply to my noble friend Lord Balfe, who called for an indefinite extension to Article 50. I am afraid to tell him that that is not possible. Any extension has to have an end date. As he will know from European law, Article 50 is a mechanism for leaving the EU, and an indefinite extension is, of course, not leaving.

Many noble Lords spoke about revoking Article 50 and mentioned the online petition and the march that we saw at the weekend. I noticed that the noble Baroness, Lady Hayter, spoke approvingly of both, but carefully avoided committing her party and saying whether Labour is actually in favour of either of those options. Indeed, if she carries on sitting on the fence, she might end up with spelks in her posterior. There is no doubt that there are clear and strongly held views on both sides of the debate. That has been clear since the referendum, when the largest democratic exercise in our history took place, with 17.4 million people voting to leave—as noble Lords are no doubt tired of me saying.

My old sparring partner, the House’s resident heckler, the noble Lord, Lord Foulkes, and indeed the noble Baroness, Lady Altmann, talked about the impressive march and petition. They were indeed impressive. Let me say, however, that we govern this country by the ballot box and by this Parliament and not by numbers on demonstrations, or indeed by internet polls. I noticed that the noble Lord, Lord Goldsmith, was very careful not to mention either—because, of course, he was a member of the Blair Government when we had a similar, and even bigger, demonstration against the Iraq war and by the Countryside Alliance—and we all know what happened as a result of those demonstrations.

The noble Lord, Lord Adonis, slightly bizarrely called on us to revoke Article 50 and then to hold a referendum. I agree with the point that the noble Lord, Lord Trevethin and Oaksey, made on this. It seems slightly strange. If we do that, what are we going to hold a referendum on? Is he seriously saying that we could revoke—in other words, tell the EU unconditionally that we are going to stay as members and then maybe, possibly, decide that we are going to leave again? I think that that was possibly one of the more ridiculous of his strange ideas.

The Government have long been clear that failing to deliver on that vote would, in our view, be a failure of our democracy. On this point I agree with the noble Baroness, Lady Deech. In response to my noble friend Lord Hailsham, it remains a matter of firm policy that this Government will not be revoking Article 50 because to do so would contradict the result of the first people’s vote, which we are committed to respecting. This Government are committed to delivering on the result of that referendum and leaving in a smooth and orderly way.

I was particularly struck by the interesting and insightful speech by the noble Baroness, Lady Smith of Newnham. She referred, for noble Lords who did not hear her, to her sadomasochistic tendencies. Now, before noble Lords get too excited, she was referring to a forthcoming book, which we will all read with great interest, on the history of European referenda, and how she thought referenda were a device for demagogues and dictators and were always a bad idea, but maybe we should have just one more of them, so bad are they. Of course, ignoring referendum results is a common feature of the European politics that she studies so closely.

A number of noble Lords, including the noble and learned Lord, Lord Hope, and the noble Viscount, Lord Hailsham, spoke about the European Parliament elections, a subject very familiar to the noble Baroness, Lady Ludford, the noble Lord, Lord Balfe, and of course myself. The Prime Minister has been clear that, should there be a further extension to Article 50 beyond 22 May, that would mean participation in the European elections. As she has said before, it is our firm belief that it would be wrong to ask the people of the United Kingdom, three years after voting to leave the EU, to then vote in the European elections.

Brexit: Economic Forecast

Debate between Viscount Hailsham and Lord Callanan

Wednesday 28th November 2018 Lords Chamber

[Lord Callanan]

I am sorry if the noble Lord was disappointed with my Answer, but perhaps he has neglected the small matter of the EU withdrawal Act, which was passed by this Parliament—this House and the House of Commons—and legislated for our withdrawal from the European Union as a result of the referendum, which the Liberals also want conveniently to ignore. We are leaving the EU on 29 March next year. I hope that we will leave with this deal, but if we do not, we will leave with no deal.

[Viscount Hailsham (Con)]

My Lords, does my noble friend agree with the Treasury assessment that the United Kingdom’s economic interests would best be served by remaining in the European Union on existing terms?

[Lord Callanan]

I refer my noble friend to the Answer I just gave the noble Lord. We had a referendum on the subject and the country decided to leave the European Union. That referendum was authorised and legislated for by this Parliament, our notification of withdrawal was legislated for by this Parliament, and we have now ratified the withdrawal Act, which legislates for our withdrawal date of 29 March next year.

Brexit: Negotiations and No-deal Contingency Planning

Debate between Viscount Hailsham and Lord Callanan

Tuesday 4th September 2018 Lords Chamber

[Lord Callanan]

The noble Lord is correct that Article 50 sets out a mechanism by which the process can be extended, but we are very clear that we are not going to apply for it to be extended. We leave on 29 March and we believe that an agreement can be negotiated well before then. It will need to be done so that we can pass the appropriate legislation in the House of Commons and in this House.

[Viscount Hailsham (Con)]

My Lords, does my noble friend agree that it is truly extraordinary that the Government are advising the stockpiling of medicines and other necessities not as a result of war or of some natural calamity but rather as a result of a self-imposed policy which may well lead to yet further direful consequences? Should the country not be made urgently aware of the folly of what we are about?

[Lord Callanan]

The noble Viscount forgets that we had a referendum on the subject and the country as a whole decided that it wished to leave the European Union. We are implementing that decision. The technical notice to which he referred merely makes the point that we need to make sensible, pragmatic preparations in case there is no deal. We do not want or desire that outcome, but a responsible Government—he has been a member of such a Government in the past—have a duty to make clear what preparations may be necessary in the event of that unfortunate eventuality.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Callanan

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Viscount Hailsham (Con)]

Will my noble friend help the House in one respect? I am trying to understand whether the amendment in any way obliges the Government to do anything or in any way prevents them doing anything. It seems to me entirely neutral in its effect. Can he help us?

[Lord Callanan]

I think I covered that in what I said earlier: we believe it to be unnecessary and pointless.

Going back to my noble friend Lady McIntosh’s questions, the second question she asked me was about contracts of employment of staff employed in those agencies. Of course, these are a matter for those agencies, but the rights of those UK citizens, as UK citizens in other EU countries, are guaranteed in the agreement we reached with the EU in December. The noble Lord, Lord Whitty, asked me about the membership of agencies ending in March 2019. As set out in the agreement reached in March, during the implementation period common rules will remain in place and the UK may continue to participate in EU agencies where the presence of the UK is necessary and in the interests of the Union or where the discussion concerns acts addressed to the UK and its citizens.

In conclusion therefore, while I fully understand the intentions behind the amendment, I do not believe that anything would be gained from its acceptance in the Bill, apart from confusion.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Callanan

Monday 19th March 2018 Lords Chamber

[Lord Callanan]

Of course I do not disagree with the ruling of the Supreme Court, which is why we will have another vote later in the year and will bring in legislation to implement the result of our negotiation.

Noble Lords will of course recall that we had a debate on Report of that Bill on the options for a second referendum, an amendment that was defeated by 336 votes to 131—a telling result, perhaps, but not as telling as that of last year’s general election, where the parties committed to respecting the result of the referendum received more than 80% of the vote. Petitions have been brought to the other place for debate on this issue and have failed to garner the support of the House.

I say this: we were given a national mandate and Members must comply with the instructions for exit from the EU. I am sorry if noble Lords are shocked by those words, but they are not mine, they are the words of the former leader of the Liberal Democrats, Sir Nick Clegg. Perhaps for the first time in my life, I agree with Nick.

We hold not only that this Bill is not the vehicle for a second referendum but that the European Union Act 2011, put in place by the coalition Government to ensure that referendum would be held regarding future transfers of competence to the EU, is also not a mechanism that can be used to secure such a referendum by stealth. I know that we shall return to this point on another day.

This debate and the issue surrounding a second referendum is about more than the decision to leave the EU; it is about whether the public can trust us politicians. The British people can trust this Government to honour the referendum result. To do otherwise would undermine the decision of the British people, with worrying implications for the perceived legitimacy of our institutions.

[Viscount Hailsham]

Will my noble friend address the question put to him by the noble Lord, Lord Butler? Will the meaningful vote be such as to enable Parliament to vote to stay in the European Union if that is what Parliament wants?

[Lord Callanan]

I covered this point earlier. Parliament has passed the notification of withdrawal Act, to give our notice under Article 50 to withdraw from the European Union. That is the process that we are following; that is the process that was authorised by Parliament.

[Lord Callanan]

We have said that once we have negotiated the best deal available, we will bring it back to this Parliament and Parliament will vote on whether it wishes to accept that deal or not.

[Viscount Hailsham]

Can Parliament vote to stay in the European Union?

[Lord Callanan]

No, Parliament authorised us to leave the European Union under the notification of withdrawal Act. We effectively gave two years’ notice under the Article 50 process.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Callanan

Committee: 6th sitting (Hansard): House of Lords
Monday 12th March 2018 Lords Chamber

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

My Lords, Amendments 86, 126, 127 and 155—in the name of the noble Baronesses, Lady Hayter and Lady Kramer, and the noble Lords, Lord Turnbull, Lord Lisvane and Lord Higgins—concern Clauses 7, 8 and 9 and the ability to provide for taxation or fees and charges under those powers.

Let me start by saying that the Government are aware of the concerns of many noble Lords about the raising of fees under these powers. On Report, we will look closely at how we can resolve those concerns. Let me explain the various issues, beginning with Clauses 7 and 9. I am glad to be able to reassure noble Lords that the restrictions in Clause 7(7)(a) and Clause 9(3)(a) already prevent Ministers establishing charges of a type that would involve any element of taxation or tax-like provision under these powers. Beyond that specific issue, I want to set out the Government’s intentions with regard to those fees and charges.

[Viscount Hailsham]

Will my noble friend tell the Committee what, in his view, is the essential difference between a fee, a charge and a tax? The Committee must understand the expressly defined difference.

[Lord Callanan]

If my noble friend will stay with me, I will come on to that. Beyond that specific issue, I will set out the Government’s intention with regard to fees and charges. We have included the powers in Schedule 4 to provide for fees and charges in order to be clear and transparent. It is, however, necessary for the powers in Clauses 7 and 9 to interact with existing regimes to correct deficiencies within them, and to properly modify them to reflect the withdrawal agreement. Without prejudice to our negotiations, an example of such a correction might be modifying a fee in relation to the authorisation of a credit rating agency so that the fee becomes payable to the UK financial regulators rather than the European Securities and Markets Authority. That might be argued to amount to the imposition of a new fee.

The requirements to pay new fees and charges established under Schedule 4, and the ability to modify existing regimes, will depend on deficiencies being properly corrected and on functions being transferred. Clauses 7 and 9 are not primarily aimed at imposing fees, and they cannot impose other kinds of charges, but sometimes that will be part and parcel of the correction. In answer to the questions about fees and charges from the noble Viscount, Lord Hailsham, the noble Lord, Lord Deben, and the other poachers turned gamekeepers—if I may refer to them as that—on the Privy Council Bench, a fee is a payment only for a service received. By a charge, in paragraph 6(2) of Schedule 7, we mean anything which goes beyond cost recovery. Clause 7 cannot create a charge. In addition, creating either a fee or a charge is subject to the affirmative procedure.

The argument against a tax restriction—

--- Later in debate ---

[Viscount Hailsham]

I am sorry for my noble friend, but he did say that both the fees and the charges were subject to the affirmative procedure. I know that the fees are, but I am not sure where in the Bill I find the provision that charges are subject to the affirmative procedure. Will he tell the Committee?

[Lord Callanan]

I do not have the specific clause in front of me, but I am sure that is the case and I will write to the noble Viscount about it. I am not an expert on Erskine May and the precise legal definitions, but I will have a look at the matter towards which the noble Lord, Lord Lisvane, has pointed me.

The argument against a tax restriction on Clause 8, made by the noble Lord, Lord Lisvane, is altogether different. The Clause 8 power is predicated on the fact that when we leave the EU, without further action we may inadvertently end up in breach of certain international obligations which have been affected by our EU membership, as a number of noble Lords have pointed out was said in the other place by my honourable friend Robin Walker. It is possible that some of these obligations may be in the field of tariffs, although it is, of course, impossible to know the full picture until our future relationship with the EU has been negotiated. If Clause 8 had a tax restriction as the other main powers do, we may not have the capability to remedy these breaches in all circumstances. As I hope noble Lords will appreciate, we are committed to international relationships and a key part of that is ensuring that we are fully compliant with our international obligations.

--- Later in debate ---

[Viscount Hailsham]

What about “appropriate”?

[Lord Callanan]

It would be totally appropriate and, indeed, necessary to do so in the circumstances. We are in a difficult position in that we are trying to plan for all eventualities. It is one of those powers that we hope we will never use because, of course, we want, and seek, a good agreement with the EU.

--- Later in debate ---

[Lord Callanan]

My Lords, I had intended to stand up before the noble and learned Lord sat down to respond to his kind invitation. Perhaps it would be to the benefit of the House if I note that, as the noble and learned Lord has pointed out, this issue has been debated previously in the debate on the sanctions Bill. As with the issue we debated last Wednesday—the appropriate test for the use of delegated powers—the solutions found in the sanctions Bill are at the forefront of our minds in this regard and we intend to meet noble Lords to discuss the issue over the coming weeks. I will set out the Government’s views at the conclusion of the debate on this group of amendments. I very much look forward to hearing what noble Lords have to say but I thought it would be helpful to say this at the start.

[Viscount Hailsham]

My Lords, in view of what my noble friend has said, I can be very brief. I support the first four amendments in this group, to which I have set my name, and have ventured to put forward a sort of default position in my Amendment 340. As the Committee will appreciate, the purpose of the first four amendments is to ensure that the regulatory power now under discussion cannot be used to create a criminal offence, and the noble and learned Lord, Lord Judge, has set out very clearly the reasons for this. Amendment 340, which stands in my name, is the default position, so that if by any evil chance this Committee or your Lordships’ House decided that it was right to create a criminal offence, it should be one that does not attract a custodial sentence.

We need to be quite plain about what we are talking about. The Bill as presently drafted enables the Minister, if he deems it appropriate and subject to the affirmative resolution, to create a criminal offence that attracts a custodial sentence of up to two years. Two years is not an insignificant period, and it is very important that one reminds oneself that the test is whether the Minister thinks it is appropriate. Furthermore, we must go on reminding ourselves that the procedure—that is the affirmative resolution procedure—is simply not subject to amendment. So this is, in effect, the power to introduce a criminal offence which attracts a custodial sentence by fiat or declaration. I find that profoundly unattractive.

As a former Minister who signed an awful lot of statutory instruments, I know that the degree of ministerial oversight is extremely limited. As I said, if this Committee decides that a criminal offence should be creatable in this way, then surely it should not attract a custodial sentence of any kind.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Callanan

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Callanan]

If the noble Lord will have a little patience I will get on to that in a second.

If regulations could only make “necessary” provisions, the powers would be heavily restricted to a much smaller set of essential changes. For example, if the Government wanted to change references in legislation from euros to sterling, we would expect such a change to be considered “appropriate” both by the courts and, I hope, by this House, but it might not be considered “necessary”.

We might manage to ensure that our statute book is in a legally operable state, but it would not be in its most coherent form, or arranged in a way that best promotes our national interest. I am sure that this Committee does not intend to restrict the Government from legislating coherently or in the national interest, but that may be the unintended consequence of amendments which swap “appropriate” for “necessary”.

I note that some of the amendments in this group contain wording suggested by the DPRRC in its report on the powers in this Bill. In particular, I was interested in the assertion that:

“The operative test in Clause 7 should be whether it is necessary to deal with the problem, not whether only one solution follows inexorably”.


I first highlight that I do not believe that these amendments break up the necessity process in the way that the committee intends. I also question the merits of breaking up the necessity test in the way that the committee suggests. In its report, the committee cites the example of a deficiency in which there is:

“A requirement to collect and send information that will no longer be accepted by the EU”.


The committee states that it,

“is clearly a deficiency that it is necessary to remove from the statute book: it cannot be right to retain a redundant legal duty that amounts to a waste of time, effort and public money”.

However, I question whether this change is strictly necessary, or whether it is merely appropriate. The committee asserts that it cannot be “right” for this arrangement to continue—and I agree with it—but is it strictly “necessary” that it be removed? What great harm, after all, would be done if the information were still sent? The statute book would continue to function, albeit illogically and not in the public interest. But is it necessary, in a strict legalistic sense, to have the statute book working logically and in the public interest, or are all our changes merely appropriate? In these sorts of instance we cannot with any certainty predict the way in which a court might rule. It is precisely to guard against such a decision that the Government cannot support the suggestion made by the committee.

[Viscount Hailsham]

Is the Minister saying that he will not accept these amendments because he might be defeated in court? If so, that is a thoroughly bad reason.

[Lord Callanan]

I think I have made my position clear on that but, nevertheless, I also said that we are listening and endeavouring to satisfy the concerns of noble Lords.

Amendments 73, 119 and 141 tabled by the noble Viscount, Lord Hailsham, and also spoken to by my noble friend Lord Lang, meanwhile used “essential” rather than “appropriate” to limit the discretion of Ministers in exercising the delegated powers. This really is very similar to the amendments which propose the use of “necessary”. I think that a court would likely interpret the meaning of “necessary” and “essential”—in this context—in much the same way and, therefore, I will not repeat the arguments that I have already made.