European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, as several noble Lords have mentioned, and as the Constitution Committee report said, lessons can be learned from the Sanctions and Anti-Money Laundering Bill. That is a sectoral Brexit Bill, not saving legislation and not aimed at policy change. It was explained, variously, as a technical bill, as dealing with deficiencies and as not changing policy—just the same vocabulary used to describe the withdrawal Bill and operations within it.

I will elaborate more fully on some of the lessons. First, all creation of new criminal offences by regulation was taken out, not just those over the threshold defined as “relevant” in the withdrawal Bill, which means sentences greater than two years. When voting on this constitutional point for the second time, there was a massive vote to remove from the anti-money laundering part, where sentences were indeed limited to two years, any new criminal offences. If anything, the case is clearer for the withdrawal Bill: why should “saving” legislation create any new offences?

Secondly, in the anti-money laundering part of that Bill, it was frightening to compare the unlimited, policy-free, mechanistic list of delegated powers with the far richer policy context and predictability of the EU money laundering directive that it replaced as the source legislation. Until amended, this proposed primary legislation gave absolutely no substantive foundation against which to test future secondary regulation. It was without constraints or policy now, empowerment for total policy change by regulation later. I call that a constitutional-level policy change. We have a similar wolf in sheep’s clothing prowling parts of the withdrawal Bill.

Thirdly, with its amendments, the anti-money laundering part is much improved. Nevertheless, businesses are in a more uncertain place because the Bill is no longer set in the richer EU format. Uncertainty is not a good direction of travel for our home-made laws and we should not be inured to it—we can do something about it.

The good news is that the withdrawal Bill aims, so we are told, to save policy context—the idea is right. The bad news is that the legal status is confused; it certainly cannot be case-by-case at ministerial convenience. There are “panic button” clauses giving delegated powers without objective definition and stretchy schedules that expand, sometimes for ever, what you thought had been limited in clauses. The Explanatory Notes say the law is not deficient merely because a Minister considers that EU law was flawed. Such clarification must surely be in the Bill; so must objective qualification of the much overused “appropriate”—that is definitely an alpha wolf, not a sheep.

Businesses have been promised policy continuity. So, in considering amendments around status, legal clarity and interpretation, my test is that, however legislation is saved, it should not mean sacrificing policy. Policy continuity means keeping all relevant factors to assist interpretation or challenge; keeping them after modification, because that has been stated as being only to clean up language; and keeping them for EU-derived legislation, such as directives, under Clause 2. Just as Ministers quote rules and precedents to justify their words in legislation, similar happens when negotiating directives. A great deal is contained in recitals, which are relevant for interpretation by the EU court and regulatory authorities, even though they are not transposed and their content is needed.

In that context, my final point is to ask how EU constraints on delegation of power will be retained. My goodness, we need to get some constraints from somewhere. This has relevance to financial services, where the European supervisory authorities are bound by the Meroni principle. Will the FCA and the PRA be so bound when taking over—and if not, why not? At present, it is the EU that implements international standards, such as Basel rules, via co-decision and providing policy guidance for tertiary legislation. Where will the implementation and policy guidance come from in future against which to measure secondary and tertiary legislation? Will this Parliament have any role, or will the UK be run by delegation and deference—delegation to regulators and deference to the same regulators sitting in international regulatory bodies? Will this Parliament be given comparable time and opportunity for consultation and scrutiny of regulatory proposals? I say to the noble Lord opposite that I should like an opportunity to do here one fraction of what I did in the European Parliament.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Mackay of Clashfern]

I entirely agree with that proposition but since the noble Lord, Lord Pannick, had mentioned it, I thought for the sake of brevity I would leave it out of my remarks.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I do not entirely agree with the Constitution Committee and so, with suitable temerity, I will suggest modifications to its approach as we go through this and later clauses. Not surprisingly, I look at matters from the perspective of recent familiarity—one could say rather too much familiarity—with the making of EU legislation. So I know rather more about the input end of the pipeline than the output. But it is at the EU end of the pipeline that the genetic markers of EU principles and case law get attached, and since those markers have been reproduced in UK case law and the reasonable expectations of those affected, I have great concerns.

I accept that it is not easy to move legislation made in one constitutional environment to a different one without losing something. The Government have tried and their approach leads to various types of uncertainty, which are then plugged, as far as they can be, through sweeping ministerial power, which brings forward more concerns and uncertainty. So something needs to be done but the Constitution Committee package, while having good ideas to build on, does not quite gel for me. I have made some suggestions to sort out the wrinkles as I see them. They come mainly in amendments to later clauses but they have backwards relevance to Amendment 15. Like others, perhaps, I also discovered on Monday, thanks to my noble friend Lady Hamwee, that the Bingham Centre had done a report, which I think I can claim in part has similar conclusions to mine on Clause 2 and, indeed, elsewhere.

When it comes to Amendment 15, moved by the noble Lord, Lord Pannick, I am torn in two directions. Doing what the amendment suggests, as with other suggestions from the Constitution Committee report, is not without constitutional cost, as is mentioned in the report in respect of the Clause 5 proposals. But it happens with Clause 2 as well: some legislation that currently has an EU dimension, and therefore would benefit from judicial interpretation using EU general principles such as proportionality and fundamental rights, will no longer benefit from that. I could add to that environmental issues that are in the EU constitution. Against that, it reduces the extent of legislation that falls to be amended under Article 7 and there is a lot to be said in favour of doing less—there will be less confusion, more time for scrutiny of the remainder, and less chance of this becoming the great gold-plating Bill.

I am not immune to suggestions that if a directive has been transposed via an Act of Parliament and that Act of Parliament has established delegated powers that have been used for other transpositions, then Parliament knew what it was doing. But without examining all the documents and the details, what was the background? Did the Government say that they had to do certain things because of the EU? Did they in fact say that to close down some other amendments? What did Members have in their minds about equality and other EU fundamental rights that were well known? They could not just say that they were not taking those into account.

If you are looking at the hybrids, as has been mentioned, some Acts may be—let us say for simplicity—half EU and half UK. One that I would choose is the Data Protection Bill, where the UK has been prepared to go much further than the EU in what can be retained. You need to know which bit is UK-only and which bit is European-only. I have always assumed that it was to only the EU-derived part that supremacy and all the EU general rights would apply, and you would have to look at how it was couched.

There is also the matter of onward intertwining. The Bingham Centre also uses the example, at the foot of page 21, of the Equality Act 2010. However, it points out that there are decisions of domestic courts interpreting that Act in the light of CJEU case law, so our decisions are going to be consistent going forward. It is considerations such as that that then provoke its first conclusion on this, which is in paragraph 60 on page 22. That suggests, as the noble Lord, Lord Pannick, has acknowledged, that to make things work, you need to do something extra in Clause 6 about how to interpret legislation that has been removed from the scope of Clause 2. There is also a second, alternative conclusion in paragraph 61, which suggests amending other provisions; a future report is then promised.

As I have said, I did not get the report till late, so I had already gone ahead and made my plans. When I thought about it, one of my conclusions was that, perhaps instead of closing down the scope of the application of Clause 2, the thing to do was to close down the scope of Clause 7. My proposal, therefore, is not to exclude subsections 2(b), (c) and (d) from Clause 2 but to exclude them from having effect in Clause 7. That way, they will not be amended and tampered with, possibly apart from when it is necessary to remove some trivial EU reference that might no longer apply. I have already tabled an amendment that does that, which is on the supplementary Marshalled List for today.

I know that leaves the judges still having to look at EU principles over a wider range of law. If I interpreted some of the comments correctly on Monday, they would perhaps prefer to change that constitutional burden so that it fell somewhere else. However, I do not see how one can avoid that having to continue: that is the status quo, and judges have to look at where there is an EU angle—some EU derivation—and apply general principles and other things as appropriate. Without knowing what the subject matter is, it is very difficult—even dangerous—to come up with a blanket change, because you do not know what might be missing. In some cases it probably does not matter, in other cases it might be quite sensitive, and in others you would most certainly be throwing away some of the things about which other noble Lords have already spoken passionately with regard to fundamental rights. You would also be throwing away certain things to do with the environment. I have other suggestions for modification as we go forward, but I will leave those to the relevant clauses.

--- Later in debate ---

[Lord Mackay of Clashfern]

If it has become part of our law, even if it is postponed, it is subject to this Bill. If it has not come into our law, it is not part of this Bill. I shall not answer any more questions.

[Baroness Bowles of Berkhamsted]

I would quite like to complicate matters a little further. It is unfortunate that the word “snapshot” was used, because, if we look at the way in which European legislation comes into force and effect, we see that it is a bit more like a movie in that it keeps on going. Certainly, we may well have implemented some things and they will then come into force, but it would not be on a single date beyond because lots of delegated Acts and implementing regulations would come in progressively over a period of time. I am curious as to what happens when we are straddling that. Will we then take the implementing regulations and delegated Acts on something that we have already adopted into our law, or will we make up those ourselves?

[Baroness Hayter of Kentish Town (Lab)]

The noble and learned Lord, Lord Mackay of Clashfern, says that he is confused about the transition; my worry is that the people on the Bench in front of him remain confused about what a transition period means—but let us put that to one side.

I want briefly to broaden the discussion to regulations—I know that the amendment refers to directives, but it is probing and there is an important issue here which Ministers may have heard. The clinical trials regulation was mentioned at Second Reading. Like many of the measures that we are discussing today, that would have been adopted but not implemented, either because it was complicated or it took a lot of work to get everyone lined up to it—so it would not have reached its implementation date by the time we left. It might well reach that date during the transitional period—which raises another question and, probably, another Bill. If it is a standstill only on measures that have come in by the day we leave, there will be important issues to address such as the clinical trial regulations and those others that we have heard about today. They will not count as retained law, leaving us reliant on regulations that rapidly become obsolete—those relating to cars I know less about, but certainly in respect of those relating to clinical trials it would end our ability to participate. All such regulations are about not just anonymity but the way data are held. It will happen very quickly: if we are not on the same basis as the rest of Europe, our ability to be involved in those could end quite promptly. That is obviously important to patients, but also to researchers and, indeed, the pharmaceutical industry.

I wrote to the noble Lord, Lord Callanan, on 19 January and he replied very rapidly on 26 January. As we have heard today, he confirmed the Bill’s approach, which will bring over only regulations actually operative as we leave. That would exclude these clinical trial rules, for example, although we agreed them back in 2014. The letter that the noble Lord kindly wrote to me makes smoothing comments, if you like. It says, “Yes, we recognise the importance of close co-operation, we want UK patients to have access to innovative medicines, for which we need to be part of the same system, and we want the UK to be one of the best places to do science”. I turned over the page expecting the Lord Deben response, which would be to say what we are going to do about it. Unfortunately, at that point the letter stops. It says that we will discuss with the EU how to continue to co-operate in business trials but it fails to look at what will be needed, which is, I fear, a legislative process to make that happen.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Dykes (CB)]

My Lords, I begin by very quickly thanking the noble Lord, Lord Foulkes, for his comments—with which I agree entirely—and the noble Lord, Lord Pannick, for his very comprehensive explanation.

In general, Clause 5 is very problematic as drafted. I am grateful for the suggestions that have been made so far. Other colleagues who have spoken on other occasions about this danger in Clause 5 have expressed real concern about it suggesting leaving out the main subsections. Even if Section 1 is not separately debated today, they all come together in a cohesive generality.

The Bill converts existing EU direct law—as has been said, mainly regulations but also directives and sometimes decisions—into UK law as it applies on the actual exit date. I fear that Her Majesty’s Government, who have already shown massive incompetence in handling the whole wretched process of Brexit, underestimate the huge volume of SIs that would need to cascade through the system if enacted as they stand. I feel very strongly that it would not be seemly and proper to incorporate the words of the so-called supremacy of EU law as is written down now, even if there was a laid-down definitional basis. Even the qualified tone in subsections (2) and (3) does not reassure me. Unless the text is improved appropriately, I envisage endless scenes of parties arguing in UK courts over the underlying meanings—arguments for some length of time and at notable expense, of course.

Many outside expert observers of these matters—including, I recall, the Law Society—have flagged up these possible consequences. There have also been suggestions of them in various quarters, not least in our House’s Constitution Committee. The principle of the famous Clause 2 in the original 1972 EU membership Bill should be invoked to decide on the solutions—albeit for the reverse objective and in the reverse direction—to mitigate these dangers and provide the cover-all effect needed to avoid unnecessary litigation and post-Brexit wrangling.

I conclude by emphasising that taking part in these irritating and, dare I say, excessively bureaucratic legislative procedures in no way implies my support for the Government’s foolish, relentless, drive for a nightmare Brexit that fewer and fewer people in the UK now want. That is why I support the symbolic resistance of the noble Lord, Lord Adonis, to all the clauses standing part, including Clause 5.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, we are now looking again at the principle of supremacy and status. I agree with a great deal—in fact, almost all—of what the noble Lord, Lord Pannick, said. However, in the various amendments I have sprinkled around, I differ with him on one fundamental point: I always wish to preserve the rights of individuals and businesses to have legislation struck down. That is their current position in that they can have EU law struck down. I put forward my alternative plan in Amendment 32A; I will explain how I got to it.

Broadly speaking, there are three baskets of EU laws. In basket 1, there are the treaties and the Charter of Fundamental Rights, which have to be followed by the European court. They are not revocable, as I am sure noble Lords know, and it is a big procedure to change them. In basket 2, I put legislative acts, meaning regulations and directives that set policy. To be precise, they can be identified by the article of the procedure in the treaty that they were made under. In the Lisbon treaty—the TFEU—it would be Article 289. The important point for noble Lords to hold in their minds is that these regulations and directives set policy. Basket 2 legislation can also be struck down by the European court—including on an action from individuals and businesses—for being incompatible with the treaty or the charter. A recent example is the data retention regulation that was ruled disproportionate in cases brought by Digital Rights Ireland and others. In basket 3, I put the implementation of Acts and delegated Acts and their predecessors. In the Lisbon treaty, that comes under Articles 290 and 291. These can be struck down by the European court for being incompatible with the treaty or the charter, as well as for being incompatible with the powers and instructions that were delegated to it in the legislation on which it depends.

If we take rights as our guide—by which I mean the right of an individual or business to challenge the validity of a bad law—then we get to the categorisation that the EU gives to law: that it is all secondary, except for the treaties and the charter. It is quite easy to accept that retained EU general principles—corresponding to basket 1, as I called it—should have primary status. Once converted under Clause 7, it would be wrong if they were changed or revoked other than by an Act of Parliament.

Basket 3 regulations are very close to statutory instruments in the way that they are made based on delegated powers, including an all-or-nothing single vote in the Council or Parliament to turn the whole lot down. There is also similarity in the ways they can be invalidated in court. That is quite easy to map on to our statutory instrument. Basket 2 is harder. The policy content and procedure of making the law look a lot like the making of an Act of Parliament; that leads some—I think Professor Craig was one of them—to conclude that it should map on to primary legislation. But then, if primary, it cannot be quashed under the general principles, so the rights of individuals and businesses are lost. Of course, if noble Lords look at Schedule 1—as we will later today—it can be seen that the Government’s intention is that there is no right of action on a failure to comply with the general principles of EU law. That is wrong. Treating legislation as primary carries the same cost that the Constitution Committee accepts. As it says in paragraph 48 of its report:

“Treating retained direct EU law as primary legislation for all—including”,


Human Rights Act,

“purposes is not without constitutional costs”.

I consider that cost to be too high because I give more weight to maintaining status quo rights and the reasonable expectations of individuals and businesses than making judgments easier or fewer.

We have to address that question several times in the Bill. Each time, I come down on the side of the people’s rights. No manifestos have ever said, “We want to take back control, including your right to challenge bad law”. However, the secondary legislation nature of basket 2 may require some further protection from overly easy change and revocation by statutory instruments, especially once things are no longer pinned in place because we are not part of the EU. In the EU, this was not made by a statutory instrument-type process, nor is it amendable in that way, so basket 2—although of secondary legislation status—could be deemed amendable in life after Clause 7 only by an Act of Parliament. This idea is similar to the one we debated regarding Amendment 21 in the name of the noble Baroness, Lady Hayter. Such treatment means that there is a special category for these laws, but we are in an unusual situation. The fact is that basket 2 is an intermediate, piggy-in-the-middle category. It is secondary legislation-plus, or primary legislation-minus. It could be replicated more or less by secondary legislation plus amendment protection, or the other way round as primary legislation but challengeable as to validity, although that is a bit more controversial.

The piggy-in-the-middle nature shows up in other ways. Basket 2 legislation actually contains within the individual documents a great deal of detail that in the UK domestic system would be done in delegated secondary legislation. It is the same with directives: a greater level of detail is there than in the lean and mean UK Acts of Parliament. That is even more the case after implementation for the secondary legislation made under the European Communities Act. For example, look at the Sanctions and Anti-Money Laundering Bill, which recently received its Third Reading in this House. The money laundering regulations 2017, based on the fourth anti-money laundering directive, are some 112 pages plus a glossary. They were replaced in the Bill by one clause of 28 lines, including the headings and a three-and-a-half-page schedule listing delegated powers. It has been much amended and improved, but the contrast in content is much the same. If we made secondary legislation transposing directives into primary legislation, there would be a great deal of detail on which I would not wish to say I gave the sovereignty of Parliament a totally unchallengeable status.

There are three parts to my amendment. The first would reword the supremacy principle. I intend it to do the same thing and I am not precious about the wording. In fact, I just modified the Constitution Committee’s idea and stole the idea that you allocate precedence as if it were primary legislation, but in my plan the only bit of primary legislation it gets is the precedence. The second part would allocate secondary status to basket 2 retained legislation, and indeed to basket 3—everything except for Acts, because where we have Acts they already are and look like Acts. I then allocate primary status to EU general principles. As I have indicated, for life after Clause 7, basket 2 could be made so as to require amendment by primary legislation. Possibly that belongs in Clause 7 or somewhere else.

[Lord Beith (LD)]

My Lords, my noble friend Lady Bowles has identified a problem that goes beyond what the committee sought to solve in its proposal, and proposed an ingenious way of trying to deal with it. The committee’s proposal seeks to protect the important bits of that legislation from the degree of vulnerability provided by the repeal of statutory instruments under our present procedures. It is an intriguing point in some ways, because I expect this to be a shrinking area of law over time. If we leave the EU, one assumes that much of this legislation will in time be replaced by new legislation bringing that area of law up to date, not because it is EU law but because things move on and there is a need to do so.

That reminds us of the danger that the committee set out at paragraph 103 of its report. It said:

“If the ‘supremacy principle’ were to continue to feature in the Bill, clause 5(3) would need to be amended to clarify the extent to which retained EU law can be modified while retaining the benefit of that principle, and to clarify in what circumstances the modification of pre-exit domestic law would be such as to turn it into post-exit domestic law that is no longer vulnerable to the operation of the ‘supremacy principle’”.


We chose not to go down that road or try to define it because it seemed an extremely bad situation to get into. One other problem that I will add to the list so well adumbrated by the noble Lord, Lord Pannick, occurs in paragraph 87 of the report, which points out that Clause 5 would also need to be amended,

“to provide courts … with suitable guidance for the purpose of determining whether a rule of the common law should be taken to have been ‘made’ before or after exit”.

If that is not done then the procedure that the Government have chosen will yet again promote and continue uncertainty. In both cases it would be better to go for some version of what the committee proposed.

--- Later in debate ---

[Baroness Bowles of Berkhamsted]

Perhaps I may make an observation. Leaving general principles out of it, if you categorise all the legislation as secondary legislation and then deem that some of it can be amended only by Act of Parliament, you do not have to sort it all. You would have to sort it only when you wanted to amend it—and at that point you would look at the basis on which it was made.

[Lord Keen of Elie]

I am obliged to the noble Baroness for that observation. Obviously, that is something that we would take into account. It perhaps touches on a question I did not answer from the noble Lord, Lord Pannick, with regard to Clause 5(3), where he queried the reference to the “intention of the modification”. Of course, what that makes clear is that this will need to be considered on a case-by-case basis.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

Moved by

[Baroness Bowles of Berkhamsted]

40ZA: Schedule 1, page 16, line 12, at end insert “or
(c) the challenge relates to general principles of EU law.”

--- Later in debate ---

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I have tabled three amendments in this group, and signed two others. What links them is the provision of continuity and the ability to challenge the validity of retained law, which noble Lords will note repeats a theme I followed with regard to Clause 5.

The Bill is a bit of a yo-yo when you want to find out what rights exist. Noble Lords might think that the rights are saved. Paragraph 1(1) of the Schedule rules out the possibility of a challenge but in paragraph 1(2) the possibility comes back in again, either if there is a European court decision before exit day or if an unspecified provision is made in regulation. My Amendment 40ZA would amend the provision about that regulation, adding,

“or … the challenge relates to general principles of EU law”.

I have already spoken, in the context of Clause 5 amendments, about the fact that the EU legislation—more or less, except the treaties—is all secondary legislation and challengeable as to validity. I repeat that that gives individuals and businesses rights that I do not consider it proper to take away, even if the court making the final decision is no longer the European court. I therefore want to make it clear that such a right continues. As explained previously, retained EU law will contain many things that correspond much more to what would be in UK secondary legislation that could be struck down, so it is not such an outrageous proposition. I will not spend further time repeating what I said, save to say again that taking back control was never cast as meaning a general removal of rights from individuals and businesses.

The third sub-paragraph of paragraph (1) of the Schedule states:

“Regulations … may … provide for a challenge which would otherwise have been against an EU institution to be against a public authority in the United Kingdom”.


My Amendment 40A would basically change “may” to “must”. I do not see companies currently lining up to take their regulators to court so I do not envisage any tsunami of cases. This is just to ensure that what appears to be promised actually happens.

There are then two amendments in the names of the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Foulkes, on which I will leave them to elaborate. My reason for signing them is the same: I am not satisfied with the notion that the general principles of EU law are merely to give the courts a way of flavouring interpretation in a non-fatal way. Although that may well be sufficient for many purposes, it is not the continuity of rights and rule of law that is currently enjoyed. For that reason, I seek the deletion of paragraph (3). I also support the retention of environmental protection as defined in Article 141.

Lastly, I come to my Amendment 63, which would amend Clause 6 but is directed to the same ideas of challenge to validity. It states that notwithstanding anything else in the Bill, there remains a right to challenge validity on the basis of proportionality. Many noble Lords have spoken eloquently on the issues of fundamental rights and human rights. I am now being a bit more mundane and flagging up the importance of proportionality, particularly for business and single market legislation, where it can affect competitiveness. At Second Reading the noble Lord, Lord Hill of Oareford, said,

“we had a lot of influence in the EU: pro-free trade, pro-markets, pro-business, pro-proportionate legislation”.—[Official Report, 30/1/18; col. 1389.]

He was right, but one of the reasons why we kept going on about proportionality was that we do not have it in our own law. Our domestic test for irrationality is a lesser test, and we did not want to have to rely on CJEU salvation.

At the moment, yes, our courts have to consider proportionality when there is an EU dimension, and they will become responsible for more decisions that previously were taken by the European court. This means more consideration of wording that has been nowhere near a parliamentary draftsman and has been negotiated with the principle of proportionality underwriting everything. I cannot count the number of times that less than perfect and overprescriptive wording has been justified in a trialogue by the Commission, Council and parliamentarians with, “But it’s subject to proportionality”—and I was not always there to change it. So that attitude has to be understood and applied. I am concerned that, when we have, as I am sure we will, some continuing alignment of regulations post Brexit, the deeper test of proportionality will not be considered and applied by government or public authorities unless they know that the ultimate sanction of striking down is available to the court. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

I am quite prepared to discuss the point with the noble and learned Lord because it may be that we will look more closely at those provisions in the Scotland Act in the very near future.

[Baroness Bowles of Berkhamsted]

I thank the noble and learned Lord for his response and all noble and noble and learned Lords who have spoken in this debate. I think that it has been confirmed that it is every bit as bad as I thought it was, and in fact I am not even sure that it is not worse. We now seem to have some kind of parallel jurisprudence which appears not to be actionable either under general principles or under common law, so we have created a kind of lacuna that cannot be approached. I also reject the fact that we would not be going on indefinitely applying general principles because the whole point is that we have the law as it is in the snapshot until such time as we change it. While I understand that one would not necessarily want to go in for a sudden wholesale redrafting of things, as amendments are necessary—especially if we avail ourselves of some of the mechanisms we have talked about where an Act of Parliament is going to be needed either because it is primary legislation or because we have put that on as a safeguard—these things are going to be revised and updated. I am still concerned and it is something that along with others we might want to return to on Report. However, for now, with the leave of the Committee I shall withdraw the amendment.

Amendment 40ZA withdrawn.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

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

Moved by

[Baroness Bowles of Berkhamsted]

73A: Clause 7, page 5, line 7, at end insert “but not to the extent that retained EU law is encompassed by section 2(2)(b) to (d), save in respect of deficiencies as defined in subsection (2)(g) of this section”

[Baroness Bowles of Berkhamsted (LD)]

My Lords, when we discussed Clause 2 and the Constitution Committee’s amendments, I said I did not wish to exclude the three paragraphs that the Constitution Committee wanted to exclude; I wish to exclude them instead from amendment under this paragraph. With the discussion we just had about what is necessary rather than just appropriate, to put as much as possible beyond the temptation of amendment by the Government seems to be a good idea. That was the approach I outlined previously. As far as this clause is concerned, it is in line with the Constitution Committee and with the Bingham Centre report, and in view of the state of my voice, I think it is best if I just say that I beg to move.

[Lord Callanan]

My Lords, I am tempted to send some cough sweets to the noble Baroness to help her: she certainly has my sympathy, and I suspect the Prime Minister’s sympathy, for the difficult position she is in. I am grateful to her for the amendment and this debate.

The noble Baroness has proposed to limit the Clause 7(1) power so that it is only possible to correct deficiencies in domestic legislation in two circumstances. The first is where the deficiency is of any type provided for in this Bill and that the legislation was a statutory instrument made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the European Communities Act. The second, for all other EU derived domestic legislation, is that inappropriate EU references are the only type of deficiency which may be corrected.

I understand the noble Baroness’s well-intentioned desire to, where possible, protect from amendment legislation which has already been considered in detail by this House. However, while Section 2(2) of the ECA has been a crucial tool in the Government’s implementation of our EU obligations, it is far from the only way the Government have implemented EU obligations in the 45 years of our EU membership. Indeed, many noble Lords have been vociferous in encouraging Governments past and present to do more under primary legislation and specific powers and less under Section 2(2). Furthermore, whether a deficiency is in primary or secondary legislation is not, I believe, a meaningful indication of the type of deficiencies which might arise in it, or the significance of the correction that needs to be made.

To be ready for exit day a large number of fairly straight-forward changes will need to be made to primary legislation in exactly the same way as in secondary legislation made under the ECA. For example, Section 42(5) of the Employment Relations Act 2004, concerning information and consultation, will require amendment as outlined in the draft regulations the Government have already published. This power relates to the implementation of a directive. This directive has already been implemented in our domestic law and the relevant implementing legislation will be converted to retained EU law by the Bill. Once the UK has withdrawn from the EU, this power will have no practical application. I hope noble Lords will accept that we need to be able to make appropriate corrections to such deficiencies. The power therefore needs to be broad enough to allow for corrections to be made to both primary and secondary legislation for the full range of deficiencies. Textual and technical changes must be made in primary legislation if we are to have a functioning statute book on exit day.

The Government’s contention is that what matters is not the status of the law that is being amended but the purpose of the amendment. Indeed, some provisions of secondary legislation made under Section 2(2) are extremely important, which is why the Government have provided for the sifting committee and affirmative procedure to ensure that all regulations are subject to the appropriate level of scrutiny. For example, much of the vital statutory protections of the rights of workers in this country lies in regulations made under Section 2(2) of the ECA. We have already published details of some of the corrections that will be required here, and I hope they have laid concerns to rest. They are also representative of the type of corrections that will arise throughout the statute book and will need to be corrected to ensure that important areas of law continue to function.

I hope I have persuaded the noble Baroness of the Government’s position that it is the substance of the change, not where it is being made, that matters, and that she therefore feels able—if she can do so—to withdraw her amendment.

[Baroness Bowles of Berkhamsted]

My Lords, I beg leave to withdraw the amendment.

Amendment 73A withdrawn.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, I am most grateful to speak to Amendment 81, which for these purposes is joined with Amendments 95, 96, 100, 227C and 244. I see that the noble Lord, Lord Bassam, is not in his place. I would be interested to hear the content of the other amendments, but they seem to make very positive noises that there should be no increase in legislative burdens on individuals in businesses; that we should not exceed what is essential and not impose greater burdens; and that the Government should seek to make only technical changes and not to change policy materially.

I speak specifically to Amendment 81, which relates to deficiencies arising from withdrawal from the EU and considered in this group. The difficulty that I have with the wording as it stands in Clause 7(4) is partly because it contains a double negative and does not seem to be plain English, saying,

“retained EU law is not deficient merely because it does not contain any modification of EU law”—

and so it goes on. So partly the amendment is to express what is clearly meant, to seek greater clarity, but it also goes to the timing of the laws deemed to be deficient.

I think that it was my noble and learned friend Lord Mackay of Clashfern who said earlier that it was for Parliament to veto any statutory instrument put forward by government through the normal procedures of negative or affirmative resolution. Someone else in an earlier debate said that it should be the right of Parliament to be able to scrutinise amendments that fall under this clause—and, I would argue, particularly under Clause 7(4). So the question really to the Minister is to ask, if there is to be this scrutiny, at what stage this scrutiny would take place. My understanding is that the Minister is going to be able to act before Brexit to be able to prevent a deficiency from arising. My question is at what stage that would be and how Parliament will have the opportunity to scrutinise that. Also, if failure of retained EU law is a type of deficiency, and a failure means that the law does not operate effectively, we have already established that deficiency could cover a wider range of cases where it does not function appropriately or sensibly. Guidance as to who will actually decide what the deficiency is and when it will apply will be extremely helpful.

I mentioned at the outset that subsection (4) is not immediately clear. One turns to the Explanatory Notes and particularly paragraph 120, which says:

“Subsection (4) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient”.


I am not sure that this entirely clarifies the situation, nor does paragraph 116, relating to the earlier subsection (2). I want to probe the Minister to perhaps tease out what is the legislative deficiency, whether there is more than one stage at which it can apply, and who actually decides. If it is the Executive, at what stage can Parliament call them to account to scrutinise that? I hope that, in summing up on Amendment 81, the Minister can clarify, to create greater legal certainty, the legal basis for the functional restriction—where this is contained in a directive and therefore not retained or transposed into domestic law—to be described as a deficiency.

[Baroness Bowles of Berkhamsted]

My Lords, I speak only to Amendment 227C, just to say that this is a sort of “double omnibus” amendment in that it covers the whole Bill and also puts together, in its proposed new paragraphs from (e) onwards, some ideas about how to address in a generic way some of the concerns that other noble Lords have expressed in what I call the “Thou shalt not” clauses. Clearly, we cannot go through the Lobbies 20 times to deal with them all but, if this kind of formulation is adopted, we could achieve something that was both votable and covered a lot of the common ground that there appears to be when looking at other amendments, many of which will be spoken to later. I will limit my comments to that for now.

[Baroness Hayter of Kentish Town]

In the absence of my noble friend Lord Bassam, I just want to encourage the Minister—though I am sure it is already in his notes—to comment on Amendment 244, which appears in this group. It requires that:

“The statement under sub-paragraph (2) must include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit, and that no policy decisions are being made”.


I appreciate that the Minister and other Ministers have said all the way along that this is not about making policy, so it should be an easy certification on this occasion for a Minister to sign. I hope that that might be accepted.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

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

That has nothing to do with Brexit—but translate that way of thinking into the tertiary legislation that could arise under this Bill, with the possibility that a body, without any time limitation, could impose fines and criminal offences of up to two years imprisonment with little regulation. Those are the dangers the House is facing.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, I am sorry that there are too many speakers from this part of the Chamber, but I should like to point out that, although some advances have been made in the Sanctions and Anti-Money Laundering Bill with regard to the proposals that have already been mentioned, that is in the context of a particular Bill that has already received some scrutiny—and indeed some policy amendments—which make the application of criminal offences a little more palatable. There is, for example, the stipulation in the anti-money laundering part, which is the bit that has two years and is more akin to the instance envisaged within the withdrawal Bill, that there has to be a mental element. I do not see that safety here.

I further wonder why things that were not previously subject to criminal sanctions have to be made into criminal offences. It is a big policy change to say that any administrative or other misdemeanour is henceforth going to be criminalised with a two-year prison sentence. I do not call that “no change”. It has to be looked at in the context of each individual offence and how it may arise, otherwise you are saying that any regulatory breach will henceforth carry two years in prison. Moreover, you do not know the detail of what those regulatory breaches may be—how big or how small, or who may be on the other side of them. This would cover every piece of single market legislation. Some of these things will be quite small, and were not criminal offences before. What has changed through Brexit that suddenly we have to criminalise everybody for everything?

[Baroness Hayter of Kentish Town]

My Lords, because the case was made so clearly by the noble and learned Lord, Lord Judge, with the added detail provided by the noble Lord, Lord Marks, I shall not try to add anything to the substance of the argument. I just want to express my regret at the lack of preparation and forethought that went into the drafting of this power. Indeed, I was alarmed by it on the very day I first read the Bill and started blogging about it back in the summer. I then tabled Questions for Written Answer in October asking the Government what other instances there were of new criminal offences being created by secondary legislation. In the replies I received on 2 and 23 October, the noble and learned Lord, Lord Keen of Elie, was unable to list any.

I went on to ask the then Minister, the noble Baroness, Lady Anelay, the same question. The noble Lord, Lord Callanan, had by then taken over and replied in her stead on 14 November—but again gave no examples. The letter merely noted that “existing” criminal offences “in our law”—those are his words—which relate to the EU might need to be transferred to another body: for example, an offence not to notify an EU institution of something important relating to health. The letter ended by saying that the offence might have to be changed to a failure to notify the equivalent UK body. I understand that, but that is an existing offence, not a new one, and alters only to whom the report should be made. No case was made for, and no example given of, where new offences might be needed as we leave the European Union—much less one with the threat of up to two years in prison on first offence.

Noble Lords will not be surprised that I did not let this drop. I raised the issue again with the lucky noble Lord, Lord Callanan, who had another meeting with me in January—he has all the fun. On Wednesday last, when we anticipated dealing with this group, just before we broke for lunch I received an email from his department in response to my request in January. But again the email failed to answer why any new offences might be needed. It commented only that,

“existing criminal offences may require widening or amending, or new offences may need to be created to fix deficiencies in retained EU law”—

but provided absolutely no examples. The only example given in the email was of an existing offence where a business fails,

“to provide an EU authority with certain information”,

and therefore such an offence may,

“need amending to ensure they continue to operate effectively post exit day, for example by changing references from an EU authority to a UK one”,

and to ensure that businesses are complying with the law. Again, that is a change rather than a new offence. It is true that the email goes on to state:

“Previous case law”—


here I shall look to others to look into the detail of this—

“has created some uncertainty as to whether actions such as these would amount to creating a new offence rather than amending an existing one, and there could be differing legal views on this point”.

As I read the email, it seems that on that basis alone—that there is possibly a legal issue as to whether an amendment to an offence is a new offence—the Government have written themselves powers to create brand new offences that are punishable by up to two years in prison. So I think we are agreed that that will not do and that these powers have to go. Moreover, they have to go more completely than the Government allowed for in the sanctions Bill because, as was said in the debate at the time, anything there would follow an international agreement to which we would be a party as a Government—so there would have been that earlier stage. But these powers will not be part of that, and therefore I hope that, when the Minister responds, he will say that these powers are going to be taken out of the Bill.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

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

Moved by

[Baroness Bowles of Berkhamsted]

354: Schedule 5, page 38, line 35, at end insert—
“( ) an EU directive;”

[Baroness Bowles of Berkhamsted (LD)]

My Lords, my amendment would add EU directives to the list of relevant instruments that the Queen’s printer must make arrangements to publish. I briefly flagged the point of the amendment when we debated recitals with regard to interpretation and Clause 6(3) on 7 March. Anyhow, in those previous exchanges, and since, in the letter of 13 March from the Solicitor-General to Robert Neill MP, it has been confirmed that recitals have an ongoing role in interpretation of retained EU law. There are several interesting points in the letter and footnotes, but for the benefit of the House I will read out just a small part, which says:

“For example, the Treaty base of EU legislation, its recitals, and the working papers prepared in advance of its adoption, may all be referred to at the moment. Our courts are well-versed in this, and in dealing with the differences that exist between the interpretation of domestic law and EU law. As such clause 6(3) of the Bill should not disturb the existing approach taken by our courts”.


I still have an ongoing concern that I raised regarding post-Brexit loss rights of challenge in court, and on which I have written to the noble and learned Lord, Lord Keen, but from the interpretation point of view it is clear that recitals and other parts of directives are available for interpretation. On that basis it seems to me that directives are not just any old other EU instrument; they should have a rank prescribed in the Bill and not left to the possible halfway house of it being done at the discretion of the Queen’s printer or for there to be special rules about their admissibility.

Recitals and indeed whole directive texts and their empowerments will not only be a last resort to reference by the court; it is quite likely that, post Brexit, a lot more notice will be taken of them than previously, especially in those areas where any kind of regulatory alignment is sought. I understand from a ministerial meeting that the Treasury is certainly thinking that way.

What happens if there is no automatic publication by the Queen’s printer? As I said, it could be that the Queen’s printer does it under paragraph 1(3) of Schedule 5, but that is not certain, or under part 2 on rules of evidence in Schedule 5, and in particular paragraph 4, where it would be necessary for there to be regulations to enable documents that were not published by the Queen’s printer to be admissible, and they would have conditions around them. It may just be for certification, of course, but that does not reflect the status of this important category of EU instruments from which a great deal of retained EU law derives.

Directives need to be added to the list of relevant instruments, as I suggest in my amendment, or some other provision should be made in Schedule 5 for this important category of documents. If there is a need to make exceptions to publishing some directives or parts of them, those powers exist in paragraph 2, and I agree with the amendment in the next group that it should require regulation to make that exception, but directives should be of a category that is in unless taken out, rather than out but can be opted in. I beg to move.

[Viscount Hailsham (Con)]

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

--- Later in debate ---

[Baroness Goldie]

I was about to come on to that point, as it was raised also by the noble Lord, Lord Pannick. Directives have been implemented in domestic law—they are already there—so they do not need retaining in and of themselves, which is a distinction that I am trying to make in terms of how the Bill is drafted, but they remain available for the purposes of interpreting retained EU law. They are available for that purpose no matter what the Queen’s printer may do.

That said, sub-paragraph (3) of paragraph 1 also allows, but does not require, the Queen’s printer to publish certain other documents and instruments. Since the noble Baroness tabled her amendment, work has progressed further, and I am happy to confirm that the National Archives, which exercises the functions of the Queen’s printer, intends to make pre-exit day directives available online. I hope that I have reassured the noble Baroness and ask that she withdraw her amendment.

[Baroness Bowles of Berkhamsted]

I thank noble Lords who have supported the amendment. If something is present in the National Archives, I wonder whether that means that it can then automatically be relied on in court without there being any necessity for certification or other requirements. If that was the case, it would fulfil the point that I was trying to make—there are other points that noble Lords have referenced. I did not want it to be that, in order in a court proceeding to reference a directive or draw the judge’s attention to it, one had to remember to go through the certification process, especially if there were a lot of them.

[Baroness Ludford]

My noble friend is much more an expert than I am on these technicalities, but other noble Lords as well as I have talked about more general accessibility for citizens and businesses. Someone like me knows that I can just put the number of the directive in Google and, hey presto, I get the Official Journal. However, it being in the National Archives is not as good as it being in whatever series is published under Schedule 5. If this is to be done in some voluntary capacity, why is that good enough? Why cannot it be in the Bill? It seems a very British solution: “Oh, well, it’ll be in the National Archives”. No one will be able to find it because they do not know that it is there. It might or might not be okay for the technical purposes that my noble friend is talking about, but it will not be squarely there in a series that can be made known. I cannot understand the Government’s logic.

[Baroness Bowles of Berkhamsted]

I thank my noble friend for that intervention. She also made some important points earlier about what has come into our law allegedly from directives. I must say that, since I have been looking at this withdrawal Bill, I have become astonished by what has been done under the European Communities Act, which I do not think I would have wanted if I had gone back and made the European Communities Act again—but that is a digression.

There are two outstanding points: whether you need to do anything to get it into court for technical purposes; and what the visibility is for citizens. I must say that anybody who thinks that our legislation is at all visible should go on to the government website and wander around it. If they are hoping to find out what the current law is, the first thing they will see is that the site is not up to date. I find it a far sight easier to find up-to-date European law, but again, I digress.

With the proviso that it may be necessary to return to this—possibly the Government will bring forward an amendment or provide further explanation—I beg leave to withdraw my amendment.

Amendment 354 withdrawn.

--- Later in debate ---

[Lord Cormack (Con)]

My Lords, this is very important and the noble Baroness is entirely justified in getting a little worked up about it. I spent 40 years, almost to the day, in the other place. I never had a ministerial office and I was always deeply suspicious of Ministers exercising arbitrary power and of any measure that extended the opportunity for Ministers to exercise such powers. My noble friend Lord Hailsham intervened in the debate earlier this week to remind me—not that I needed reminding—of the importance of the Back-Bencher. The Government must always be answerable to Parliament. Giving a Minister an extra arbitrary power, be it in ever such a small degree, enables them to evade answerability to the elected House.

We are fortunate to have committees—the Constitution Committee and the committee of which the noble Lords, Lord Lisvane and Lord Tyler, are members—that act as watchdogs on behalf of this House and Parliament. As this Bill leaves our House, which it will do in a month or two, and goes back to the Commons, it must have been tightened up in as many particulars as possible so as to guarantee as much power as possible to the elected House.

[Baroness Bowles of Berkhamsted]

My Lords, I will speak to the amendment in my name, in case other noble Lords want to come in on it. It relates to Part 2 of Schedule 5, on the rules of evidence. It is about regulations again, but in a different part of the schedule. I am sensitive to powers that potentially change what may or may not be available as evidence. This is a constitutional point, especially if it means disappearing cases or defences. I therefore find the provision in paragraph 4(3) of Schedule 5 too wide. It permits regulations under paragraph 4 to modify any provision made by or under any enactment made up to the end of the Session in which this withdrawal Bill is passed. That is basically all legislation until then.

I have tried to work out why this provision is needed and what it could do if abused, for that is the standard that we must measure against. In many discussions on wide powers, Ministers have protested good faith. Many of your Lordships have not doubted them but have still wanted safeguards, while others of your Lordships, including distinguished privy counsellors on the government side, have warned—or maybe confessed—that Ministers will abuse powers and have likewise suggested safeguards. This is all part of the “appropriate” versus “necessary” argument.

I was struck last Wednesday that, when the boot was on the other foot, the Government were less keen on having to rely on trust. About devolution, the noble and learned Lord, Lord Keen, said:

“If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety”.—[Official Report, 21/3/18; col. 403.]


I accept that the context is different, but the point that many of us have been trying to make about many powers in the Bill is just that: it is a matter of constitutional propriety between the Executive and Parliament and, indeed, the freedoms of the people.

Here we have another such power, even if it is small. It does not seem right that rules of evidence for admissibility could be changed, maybe quite widely, by amending any Act of Parliament, not necessarily limited to the consequences of Brexit. I have suggested adding a limitation, which would not allow use of the power for reducing the scope of what is admissible except for the purpose of replacing EU references with domestic ones. I thought that limitation was additionally relevant because the power to amend all pre-Brexit legislation seems to be perpetual. I was first inclined just to delete it, but I hope that my amendment will give the Minister an opportunity to clarify the kind of circumstances that are envisaged for the power, why it should be perpetual and whether some limitation could be envisaged to address my concerns.

[Viscount Hailsham]

My Lords, I have a brief observation on Amendment 355. I agree entirely with the points of principle that have been articulated by my noble friend Lord Cormack, by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Tyler. Let me make a practical point. If the Minister makes an exception and gets it wrong, people dealing with the European Union may find themselves non-compliant with regulations that are in force and thereby exposed to some form of penalty or disadvantage. The advantage of the amendment is that it would reduce that possibility by a small degree. It is worth guarding against the risk if we can.

--- Later in debate ---

[Baroness Goldie]

It is a little difficult to predict specific examples. Many of your Lordships have had experience of ministerial positions. I imagine that if an anomaly were brought to the attention of the Minister that something was not going to apply; it was no longer relevant; it did not fit in the new framework of what will be a body of UK law, the Minister would be reasonable in trying to ensure that that element, whatever it was, did not appear to make its way via the Queen’s printer on to what is perceived to be the body of law for the UK.

Some may argue that that is inherently flawed and a deeply suspect way for any Government to behave. In the extraordinary situation in which we find ourselves— I suggest that outside of wartime this situation is unprecedented—common sense has to be applied. There has to be a proportionate way of balancing legitimate interests in the constitution with the practical need to make sure that we do not create nonsense in the statute book.

[Baroness Bowles of Berkhamsted]

Surely this comes about when the Government are dealing with the so-called deficiencies and then coming out with the statutory instruments to make those right. Why can you not identify it at that stage and make it part of the regulation? That is the point at which the comparison with what does not work in EU law is made. Why cannot it be part of that regulation? Whether it is under Schedule 5 or something else as the empowerment does not really matter, if it is properly done.

European Union (Withdrawal) Bill

Baroness Bowles of Berkhamsted Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

I was pleased to hear the Minister helpfully say that he is happy to return to these issues at Third Reading. They are complex and the amendments are complex. I hope that before Third Reading the Minister will be prepared to meet noble Lords and noble and learned Lords who have any concerns in relation to this, but I am very grateful to the Minister and the Bill team for the care and attention that has been given to this matter.

[Baroness Bowles of Berkhamsted (LD)]

My Lords, my Amendment 39 is buried among the government amendments in this group. I will speak to it and in doing so elaborate some questions I have concerning the government amendments. I thank the Minister—the amendments sounded better when he explained them than when I read them. I liked that he kept repeating that it will require primary legislation to change what I shall describe in a shorthand way as policy-making legislation, which is what my amendment is about.

My amendment is short and concerns life after Clause 7—life after implementation of the Bill—which is this Parliament’s legislative future. I hope this group of amendments paves the way to ensure that Parliament has a principal role, which is not how I took it when I read them. As the Minister said, my amendment provides that retained EU law enacted in the EU by co-decision—the ordinary legislative procedure—may be modified only by an Act of Parliament. I know that the Minister knows that “the ordinary legislative procedure” is just the new name for co-decision under the Lisbon treaty.

I selected that legislation, which is a subset that I spoke about in Committee, quite simply because the European Parliament had a full scrutiny and amending role in making the legislation and in any amendments to it, and I do not see why in future this Parliament should be in a lesser place than the European Parliament. The Minister has perhaps gone some way towards pointing out that that might be the case, but I will read what he said carefully to make sure. I have covered the full range of matters covered by co-decision. They are things such as company law, financial services and other issues that were not in the sensitive areas that were covered in Amendment 11 which we voted through last Wednesday. My amendment covers directives as well as direct EU regulations. It is important that policy-making legislation is not changed too easily. Again, the Minister may have sown seeds to put my mind at rest on that, but I want to examine what he said more carefully.

Another reason why it is very important for this legislation to come to Parliament to be changed is that, despite the good efforts of the EU committees, there are quite large swathes of legislation about which this Parliament is relatively ignorant. I do not say that disparagingly; it is just the way the law was made. As we go forward, it is very important that this Parliament clearly understands laws that affect major industries, even if subsequently it chooses that some of them are to be delegated to regulators. We have a system of delegation. Sometimes there is regrettably rather too much delegation, but it is very clear that if any of that is going on, it needs to have full scrutiny.

My final point relates to where we are going to use existing legislation to amend retained EU legislation after it has been converted. The legislation that we might use was not made to cover legislation that used to be done in the EU because it was well known that those policy areas were reserved to the EU. Extending the scope of that legislation so that policy-making legislation can be amended by secondary legislation is extending it further than was contemplated, and it may go beyond the reasonable expectations of that legislation. Constitutionally, that gives me a problem. Perhaps some members of the Constitution Committee can mention this. I have circled paragraph 3 of Schedule 8, which refers to powers on subordinate legislation before exit day,

“as being capable of being exercised to modify … any retained direct EU legislation”.

I submit that none of that existing legislation could have been made in contemplation of amending that type of legislation. Unless it was clearly elaborated that that was the case, I am unhappy with that provision as it originally stood and as it now stands. I am a little more unhappy with the amendment to Schedule 8 because it has been stretched to cover the rights that are going to be retained by virtue of Clause 4, which was not in the original paragraph 3 of Schedule 8. I am a little worried about having rights taken away by legislation that was not made in contemplation of taking those rights away. Those are the reservations I still have and I would welcome the opportunity to discuss with the Minister whether we can sort them out and return to this at Third Reading.

[Lord Cormack]

My Lords, I thought the Minister was a little harsh on the noble Baroness, Lady Hayter, and on the amendment which the House passed by a very large majority last week, but let that pass for the moment. I am grateful to my noble friend for making a genuine attempt to understand some of the concerns which can be summarised very briefly. This House is very concerned that taking back control means Parliament taking back control, not the Executive amassing more power to themselves, so he must understand that we will all want to read what he said. Some of it seemed very helpful but we will want to look very carefully at what the Government are actually proposing. It seems a gentle move in the right direction but, just as we have to consider carefully what the Minister has said, I say to him with great respect that he has to reconsider what the House decided last week, because it decided by a very large majority.

A final word of thanks to my noble friend: he has been dismissive of a number of pleas that some matters should be returned to on Third Reading. One understands why, but at least he has been emphatic tonight in realising that we will have to come back to some matters on Third Reading, and for that I thank him.