European Union (Withdrawal) (No. 5) Bill

Debate between Viscount Hailsham and Lord Goldsmith

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Viscount Hailsham (Con)]

If the noble and learned Lord’s Amendment 5 is carried and Amendment 7 is carried as well, is it not possible for the Prime Minister to agree a date which is never subject to parliamentary ratification?

[Lord Goldsmith]

So far as domestic law is concerned, in any event there will need to be a statutory instrument to change the exit day. I accept that in relation to domestic law, and we have had the debate about international law. A Motion will be put to the other place, which will have a full opportunity to express its views about the date, and in that way it is the subject of careful consideration. We accept that the Prime Minister needs the flexibility to be able to agree what is proposed by the European Council. The mood music we hear, if we read what is going on in the press, seems to be much more that we are likely to find that there is some meeting of minds—that there is some accommodation from the European Council—and I am less concerned about that. I am concerned about the risk of legal uncertainty, which I was just explaining.

Part of it is that we may find it difficult to be sure whether the condition in subsection (6) has been satisfied. It requires that the European Council has proposed an extension, but that may not be the way it works because in discussion and negotiation it may be questionable whether the proposal has come from the European Council or from the Prime Minister herself in the course of negotiations. Secondly, if the condition is triggered, under subsection (7) the Prime Minister must move a Motion in the House of Commons in the form set out in subsection (2) stating that that House agrees to the Prime Minister seeking an extension. How is this going to work in circumstances where as a result of a negotiation the Prime Minister has in effect reached an agreement with the European Council about what the extension should be? How does she then receive an instruction to agree a date that has already been agreed? It creates those difficulties of legal certainty.

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[Viscount Hailsham]

My Lords, I will make a brief intervention in the hope that the noble and learned Lord, Lord Goldsmith, will respond to it. I entirely understand that in negotiations—the noble Lord, Lord Pannick, described the situation in which the Prime Minister and the EU are negotiating—there has to be give and take. What disturbs me is this: the Prime Minister might decide in advance to move outside the dates previously agreed by Parliament and go with an entirely fresh date into a negotiation. That is different in kind from negotiating when they sat down to discussion. It would be a deliberate attempt to go outside what Parliament has previously agreed to. It seems to me that Amendment 7 would enable her to do that, and I am profoundly uneasy about that prospect.

[Lord Goldsmith]

My Lords, I will respond on my Amendment 5, which is the one that has been moved. A couple of points need to be emphasised.

As has been discussed already, we are in unusual circumstances, and they demand some unusual responses. This Bill does not take away or give back the entirety of the royal prerogative. It says—this is why I made an intervention earlier—that it is for the other place, on a Motion put forward by the Prime Minister, to say what date she should seek. It may be that the European Council will accept that date, in which case it is done so far as the negotiations are concerned. It may come back with a different date, and the questions we have been considering are for those circumstances. Does she have to seek approval during the next two to three days before she can respond to it, or is she able to respond by agreeing to it or by putting forward a slightly different proposal?

There are two different amendments—my amendment would remove the fetters requiring her to come back, and that of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, would enable her to reach an agreement without having had that prior approval. It seems to me that a balance is being struck between royal prerogative and necessary control by Parliament. It is absolutely the case—as the noble Lord, Lord Faulks, said—that of course the royal prerogative can be adjusted and amended by what Parliament says. On this occasion, the other place has said: “We believe that we should tell the Prime Minister what date she should seek. What happens after that will depend upon the circumstances but, whatever it is, it has to be done in this time”.

I invite the House to agree Amendment 5 and then we can move on to the other amendments.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Goldsmith

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

[Lord Goldsmith (Lab)]

My Lords, these are hugely important amendments. The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable. I am sorry that the noble Lord, Lord Lisvane, is not present today, for reasons that we all entirely understand. Noble Lords will recall what he said at Second Reading, when he talked about this as the biggest transfer of power from Parliament to the Executive in peacetime. I entirely agree. I agree with what has been said by the noble Lords, Lord Wilson of Dinton, Lord Cormack and Lord Lang of Monkton—with whom, or rather under whom, I was privileged to serve on the Constitution Committee, when he chaired it. I agree also with the noble Lords, Lord Beith, Lord Wallace of Saltaire and Lord Campbell of Pittenweem. Everybody has taken the same position in relation to that.

Let us look at the key amendment, Amendment 71, to which I am privileged to have added my name, just to note the importance of what it does. It would replace the statement that “the Minister considers it appropriate” with “it is necessary”. As a former Minister, as a former adviser to Ministers and as a practising lawyer, I fully see the significance of that change. I know as a lawyer that if I am able to say to the judge, “All that is required is that the Minister considers it appropriate—how can you say that he did not? How can you second guess that?”, I am home and dry. If, on the other hand, I have to show that it is necessary—not just in the Minister’s decision, not just on reasonable grounds, but that it is in fact necessary—then that is the test that the court has to undertake in order to satisfy itself. The point behind these amendments is that nothing less than that will do to enable this huge transfer of power to the Executive from this House.

I do not need to repeat the remarks made by other noble Lords about how taking back control should not mean taking back control by the Executive—that is not what anybody had in mind. I do not need to repeat the remarks about the number of Ministers that this gives power to. I am not even sure that the figure of 109 is right. I recall, in government—no doubt the Minister will tell me that it does not apply here—that all Ministers can act, and often do act, by their officials. The Carltona principle means they can sign the instruments, so it may mean that the 109 is multiplied manifold. I have no doubts about their good intentions, but this is not what our system requires, and we should not be giving it up in these circumstances.

Other noble Lords, including the noble Lords, Lord Bilimoria and Lord Dykes, and the right reverend Prelate the Bishop of Leeds, have also spoken powerfully in favour of these amendments.

I have a couple of other points to make, as most of what I wanted to say has already been powerfully and clearly expressed by noble Lords. The most important point is the one I started with, which is that the Minister must see the unanimity of view, as it appears at the moment, around the Committee about the change that needs to be made. We can debate whether it is essential or necessary. I rather agree with the noble Viscount, Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the better one to have, but the end aim is the same. That it is not a decision for the subjective view of the Ministers is the other key point on which we agree.

One point that I want to deal with, which has not had much discussion so far—although the noble Lord, Lord Beith, raised it—is Amendment 244A. It proposes that there should be a statement by a Minister as to the need for the change, and it is not simply a policy change. There is merit in that proposal, I would suggest, though not as a substitute for the amendments we are proposing. I draw attention to the similarity with Section 19 of the Human Rights Act, an excellent provision which requires that a Minister has to certify that a piece of legislation is compatible with the convention rights. We see it on the very front of this Bill itself. I am sorry that the noble and learned Lord, Lord Irvine of Lairg, is not in his place. He had a lot of involvement in making sure that that worked, by insisting that when it came to certifying that legislation was compatible, it was not just on a wing and a prayer.

[Viscount Hailsham]

I am grateful to the noble and learned Lord. Taking his point, if you were to combine the certification together with the requirement that the Minister had to have reasonable grounds for triggering regulatory power, then one has a very high degree of protection, does one not?

[Lord Goldsmith]

I am grateful to the noble Viscount. I would go further. First, I would say that the amendment needs to change the test so that it is “necessary”, not “considers necessary”, not “considered on reasonable grounds”. Secondly, the way the Human Rights Act certification works is that it is not enough for the Minister to have “reasonable grounds” that it may be compatible. What is required—at least when I was in government, and as a result of the diktat that was given to the Civil Service—is that the Minister must have legal advice that, more likely than not, the court would agree. I am glad to see the Minister nodding because that means that the same principle is being applied under this Administration as under the Administration in which I was privileged to serve.

Therefore, I take the noble Viscount’s point, but it is important that it is not just a consideration but an actuality based not on reasonable grounds but on fact. Obviously there is some judgment to be made about “fact” but it needs to be clear and there might, in addition, be a role for something like Amendment 244A.

This is the second time today that this Committee has considered the use of the word “appropriate”. Those who were not able to be present may wish to read the report of the earlier debate when we considered the use of the word “appropriate” in rather different circumstances—whether judges could and should rely on European case law in reaching decisions and whether it was enough that they should find it relevant or appropriate. One noble Lord who is not in his place suggested that the judges could use the law if they found it “helpful”. My worry is that that is exactly what the Government think “appropriate” means here. If this power means that Ministers can make regulations and changes because they think it helpful to do so, that is not what this House should allow them to do.

European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Lord Goldsmith

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

[Lord Goldsmith]

No, I will make some progress on the arguments which matter. As the Constitution Committee of this House said at paragraph 119 of its report, the conundrum is this:

“The primary purpose of this Bill is to maintain legal continuity and promote legal certainty by retaining existing EU law as part of our law, while conferring powers on ministers to amend the retained EU law. If, as the Government suggests, the Charter of Fundamental Rights adds nothing to the content of EU law which is being retained, we do not understand why an exception needs to be made for it. If, however, the Charter does add value, then legal continuity suggests that the Bill should not make substantive changes to the law which applies immediately after exit day”.


I want to examine the reasons that are put forward for not including the charter. The more I look at the arguments, the more convinced I become that the Government have got it wrong. I will not deny that there are issues as to the best way to bring the charter into effect in domestic law, and there are other amendments which will debate that, but Amendment 13A would require the Government to bring forward proposals for its continued application and the route by which the charter can be given effect.

[Viscount Hailsham]

Would the noble and learned Lord tell the Committee whether he is contemplating that the charter should be incorporated into domestic law as a statute, and as such be capable of amendment?

[Lord Goldsmith]

I am suggesting that the charter is brought into domestic law in the same way as all the other provisions of EU law will be brought into domestic law by this Bill, if it is passed. That means that they will be subject to the powers in the clauses that will be passed for amendment through orders, if this House and the other place approve that way of doing it. They will also, of course, as always, be subject to amendment by primary legislation. I will come on to this, but it is interesting that special protection is given to the ECHR through the Human Rights Act to protect it as we go forward, but there is no protection provided at all for the rights which underlie the charter. That is one of the deficiencies that are not taken account of in the Government’s proposal.

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[Lord Goldsmith]

I said that I would come back to it, and that is what I intended to do. A number of things have happened since the charter was drafted, as I said on Second Reading. The courts have referred to provisions of the charter and have given them effect. The decision was made to give the charter legal effect, which was not the way we started the negotiation. That is what happened in the Lisbon treaty, but that was not the original intention. That is what we argued against at the time, precisely so as to avoid the situation in which the courts were in a position to give effect to rights that we had not expected them to give effect to. That is what changed. That is why we now have a situation, where, as I have said, in a number of cases the courts have said that the charter has an effect and provides enforceable rights to individuals.

I conclude. The Joint Committee on Human Rights considered that the Government’s decision to exclude the charter, while effectively retaining nearly all other EU law, was taken without having undertaken a comprehensive analysis of the implications for the protection of rights. I cannot say whether that is right, but this amendment would require a focus to be given to that so that we can see what the correct analysis is and what the right way to proceed is. I beg to move.

[Viscount Hailsham]

My Lords, I wish to speak to Amendments 14A, 20A and 25A in this group, which stand in my name. I apologise for the absence of my noble friend Lord Bowness, who has put his name to a number of amendments but cannot be here because of weather conditions. He has asked me to apologise to your Lordships for his absence.

The purpose of the three amendments standing in my name is to ensure that the terms of the charter, if incorporated into domestic law, are capable of amendment by Parliament. This may be implied by the other amendments, but I think not. I listened very carefully to the noble and learned Lord. While there is a capacity to remedy deficiencies by regulation, there is no capacity to enable Parliament to mount a careful scrutiny and amendment of the charter. Therefore, the purpose of my amendments is to make it explicit that the charter, if incorporated into domestic law, is subject to parliamentary scrutiny and amendment.

I do not want to say very much by way of a general justification for the need to incorporate the charter; I am conscious that the noble and learned Lord who has spoken has much greater expertise than I. I know that the noble Lord, Lord Pannick, will probably speak. He, too, has much greater knowledge of this than I. I am but a journeyman lawyer and I have never had to wrestle with the charter’s significance in domestic terms. However, I noticed last week in the Times that Professor Bogdanor made a very powerful case for not scrapping the rights. The important thing that your Lordships need to keep in mind is that the charter provides a number of rights and remedies not found elsewhere in our domestic law. That point was made by the noble and learned Lord.