Retained EU Law (Revocation and Reform) Bill

Baroness Butler-Sloss Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Wheatcroft (CB)]

My Lords, I will speak briefly to both Amendments 68 and 69. This Bill, as others have said, creates huge uncertainty for business at a time when business is struggling to cope with so many uncertainties that are outside the control of the Government. But the Government do have control of this. Both amendments require the Government to report on the likely advantages and disadvantages of taking the action they propose. What could be more reasonable? What member of society would expect the Government not to have weighed up the advantages and disadvantages of taking any particular action? How on earth can it be justified to go ahead and do away with protections and rights bestowed by European law, without actually having done some consultation as to what the results are likely to be? There might be disadvantages but, unless the work is done, who knows what advantages will be thrown away. What justification can there possibly be for taking such rash and foolhardy action?

Amendment 68 also requires a resolution in Parliament as to whether such action should go ahead. It is all about bringing back control to Parliament. Why would the Government—who are so keen on bringing back control to the UK—not wish to give Parliament the say on whether EU retained rights and protections should remain? Why should consumers not have the protection of a vote in Parliament? Perhaps the Minister could tell us why he does not want to know what the advantages and disadvantages of legislating would be and does not want consumers to have their rights taken into account.

[Baroness Butler-Sloss (CB)]

My Lords, I support the three amendments, but I do not intend to speak on them. I just wanted to support and admire what the noble Lord, Lord Kirkhope, had said about the European Parliament. It was about time it was said.

[Baroness Brinton (LD)]

My Lords, I will add one very brief point as well—following on from my noble friend Lady Ludford when she introduced Amendment 68 and 69A—which is the background in the report of the Delegated Powers and Regulatory Reform Committee, which has been referred to consistently during the preceding three days of Committee. It makes the important point:

“The approach taken in the Bill gives rise to significant legal uncertainty … There is no certainty about the sunset provision itself because Ministers can extend it under the delegated power in clause 2.”


The point about these two amendments is that they set out a framework including, at the end, a very high bar that both Houses of Parliament must agree the same recommendation to go back to the Minister, which would then ensure that the Minister acted on it. It is not just for debate in Parliament, as usually happens with secondary legislation; it is making sure that there is the evidence about the background—which other noble Lords have spoken about—but then both Houses must approve the same recommendations.

I echo the questions that other noble Lords have asked. I hope that the Minister can explain to us why this safety net, as set out by the various stages in these amendments, would not be enough to reassure Ministers that we are helping them to do the job they need to do in this extremely complex matter.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

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

[Viscount Hailsham (Con)]

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

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

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

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

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

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