European Union (Withdrawal) Bill

Debate between Baroness Bowles of Berkhamsted and Baroness Goldie

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

[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.

--- 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.