Retained EU Law (Revocation and Reform) Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have no legal training, so I going to rely on noble and learned Lords to tell me whether I have understood this whole section properly. It seems a bit odd.

In contrast to the first clauses of this Bill, which have been designed by the Government to take power away from Parliament—all the decision-making process and scrutiny—Clause 7 seems designed to outsource the task of making sense of the huge legal mess in the Bill. It is wrong on many levels but, in particular, it calls on judges to make political decisions that Parliament ought to take instead. The Bill is potentially going to create a huge legal mess; it does not seem fair for the Government to outsource this issue. That is worrying enough on its own, but it is all the more worrying because of the way in which this Government have demonised lawyers and judges over the past two or three years. They have been scapegoated at every twist and turn of the Brexit process. It has been a nightmare to see people who clearly have our best interests at heart being demonised in this way.

Clause 7 seems to have a very specific purpose. Forgive me if my language is oversimplified but, quite honestly, the Government are making a huge legal mess and are going to ask other people—judges, lawyers and the courts—to sort it out for them so that those people will take the blame when it all falls apart. Can the Minister explain whether I have understood it properly?

[Baroness Chapman of Darlington (Lab)]

My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.

There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of 31 December 2023 might mean something different from what they meant when they were passed and from how courts have interpreted them if they have been considered by the courts previously. They will mean something else after the end of this year.

From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.

I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.

We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:

“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”,


before going on to list other things.

--- Later in debate ---

[Lord Bellamy (Con)]

As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.

[Baroness Chapman of Darlington (Lab)]

I am looking at the same clause as the noble Lord, Lord Kerr. He asked about new subsection (5) (c). I shall ask the Minister about new subsection (5ZA)(a), in which the courts are being asked to consider

“the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.”

If we are not encouraging courts to depart, why would we be asking them to consider the extent? That seems to raise a question, given what the Minister has just said.

[Lord Bellamy (Con)]

If I may say so to the noble Baroness, I think this is just a drafting point. The extent may well be nil. There is no particular reason to suppose that the retained EU case law in a particular case is restricting the proper development of domestic law. That was the situation, as it turned out, in the Warner music case, although at least one learned justice in that case very pointedly left open the possibility of further developments in a fast-moving technology.

[Baroness Chapman of Darlington (Lab)]

I was not referring to the proper development of domestic law on this occasion. At the top of page 6, we seem to be asking courts to consider the extent to which EU case law “determined or influenced” in and of itself rather than about the “proper development” which is in new subjection (5)(c). I wonder whether that is, to use the language used by the noble Lord, Lord Kerr, prejudicial or leading the court.

[Lord Bellamy (Con)]

I think I can take it not much further than the answer that I have just given—that the extent may well turn out to be nil.

[Baroness Chapman of Darlington (Lab)]

But why are we asking courts to ask themselves that question?

[Lord Bellamy (Con)]

The answer is that the courts will not raise these questions of their own motion. These points will be raised by a party to the proceedings. Then the party to the proceedings will argue that this retained domestic law is influenced by EU case law and is now having—or may have in five or 10 years’ time—a restrictive effect that is holding up the common law. Those are the kinds of circumstances that it envisages, I think.

[Baroness Chapman of Darlington (Lab)]

I think the Minister was about to sit down, but he kindly invited me to respond so I will. I think that is the problem. He must surely understand that we anticipate this leading to an enormous amount of uncertainty—if that alone is something a party in the court is able to point judges towards and say that, because the case law came from the EU, in and of itself that is a reason to ask for a decision to be made in a different way.

[Lord Bellamy (Con)]

Respectfully, as I said a moment ago, I do not accept that this will lead to a great deal of uncertainty. It is binding on the courts of first instance. No one is going to take this to appeal unless there is a real point to be argued. If there is a real point to be argued, it is right that that our courts of appeal and higher courts should consider that point.

Perhaps we have had sufficient exchanges on this topic and I ought to move on as best I can. Finding my place in the notes, I think I have not answered the concerns raised about what we mean by “changes of circumstances” and how we manage that. Again, this is a matter that the common-law courts are very well equipped to deal with and they can decide for themselves whether there has been any relevant change of circumstances or, in particular, whether the change of circumstance is relevant.

I would not have thought that a change of government or a change in the political wind is a relevant change of circumstance. What you need is some circumstance that makes it either difficult to operate, or less than ideal to be bound by, a particular judgment of the European Court of Justice that may have been made many years ago. It may now be completely out of date or may have failed to take account of various factors that the court feels should be taken account of. Very often in a common-law system, when you look at a case and at previous decisions, you see that the particular point had not in fact been decided and you are therefore free to decide it yourself. That is much more difficult to do in a European system, which purports to lay down perfectly general principles.

If I may trespass on your Lordships’ kindness for a moment, it is often quite interesting to look at the summary of a European Court judgment, which in English terms would be referred to as the “headnote” of the case. It extracts principles from the judgment. The equivalent headnote in an English case says: these are the facts, and this is what the decision was on these facts. That encapsulates a difference of approach, thought and philosophy as to how you develop the legal system.

As I said a moment ago, I am not saying that it is better or worse; it is just different. Historically, we in this country belong to a huge family across the world that uses this technique, whether in the United States, Canada, Australia, India—very prominently—or otherwise. The Government are simply saying that we should not forget that we have a great legal tradition and we do not have to, as it were, slavishly follow the latest emanation from those very hard-working, very able, but not necessarily relevant to us, judgments and judges in Luxembourg.

--- Later in debate ---

[Lord Bellamy (Con)]

That is quite all right.

This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.

[Baroness Chapman of Darlington (Lab)]

Could the Minister speak louder?

[Lord Bellamy (Con)]

I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.

Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

I have given my answer. I have been very clear about the importance we attach to food safety from both a government point of view and my own historic point of view, which I hope adds some credibility. I do not think I have a lot further to say, apart from the fact that officials are working with the Food Standards Agency day and night on these areas.

Amendment 132, tabled by the noble Baroness, Lady Chapman of Darlington, proposes that a Minister of the Crown should publish a report 30 days before the powers can be exercised. The report would have to include a list of criteria which relevant national authorities would need to take into account when exercising the powers under Clauses 12 to 17 of the Bill. The delegated powers within the Bill will enable Ministers to make active decisions regarding their respective retained EU law. It is only right to have such powers; they will help to put the UK statute book on a sustainable footing within a reasonable timeframe and facilitate the much-needed review and reform of retained EU law to ensure that we can capitalise on the benefits of UK autonomy. Furthermore, the Bill has been drafted to ensure that legislation made under the delegated powers is subject to scrutiny procedures proportionate to the scope of the powers. I therefore do not consider that publishing a report setting out criteria which Ministers must take into account when using the powers within the Bill is necessary given the scrutiny already provided for.

I turn now to Amendment 141 in the name of the noble and learned Lord, Lord Hope of Craighead; I am sorry he is not here today. The amendment would impose a requirement to seek consent from a Scottish or Welsh Minister where a Minister of the Crown intends to exercise a power in the Bill separately on legislation which is in an area of Scottish or Welsh devolved competence. First, I assure your Lordships that the Government are committed to respecting the devolution settlements and the Sewel convention. Indeed, none of the provisions within the Bill, including the powers, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.

I recognise that the extension power is not conferred on the devolved Governments. However, we are keen to ensure that the provisions within the Bill, including the powers, work for all parts of the UK. That is why the majority of the powers will be conferred concurrently on the devolved Governments: to enable them to make active decisions regarding their retained EU law. As such, introducing a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence is not necessary.

[Baroness Chapman of Darlington (Lab)]

We keep being told that there is not going to be consultation or legislative consent, and that the Food Standards Agency would of course be mindful of what the Government have to say. We are being asked to take all these things on trust, but it is not as though the Government have an impeccable record on these things. Can the noble Baroness not appreciate that what the Committee is trying to get at is to understand how these determinations will come about? We are looking for some sort of signal from the Government that there will be openness and a willingness to involve, and an attempt to do more than what is absolutely strictly necessary within the letter of the Bill that she is referring to. Were she to endeavour to give us that reassurance or explain how that would be done, she might find a little—not a lot—more sympathy for the position she is taking.

[Baroness Neville-Rolfe (Con)]

I understand. I am very grateful to the noble Baroness for trying to help to move things forward; we are certainly keen to do that. Clearly, this enabling Bill is going through Parliament ahead of the some of the work that has been going on around the dashboard and the individual governmental plans, which is perhaps a pity. I think my noble friend the Minister said that he would try to make more information available as that became possible. Indeed, we have given an extra couple of days for debates in Committee. Progress is being made all the time in departments on their plans. We have these two processes—