European Union (Withdrawal) Bill

Baroness Evans of Bowes Park Excerpts

Tuesday 30th January 2018 Lords Chamber

Moved by

[Baroness Evans of Bowes Park]

That the Bill be now read a second time.

Relevant document: 9th Report from the Constitution Committee

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, it is an honour to open this debate on such an important Bill. It is almost a year since I opened the Second Reading debate on the European Union (Notification of Withdrawal) Bill. That Bill began the process of leaving the EU; this Bill ensures that we have a functioning statute book on the day we leave. It is about providing certainty and continuity for people and businesses. It is about ensuring that people’s rights are upheld and legal protections are maintained. It is vital to a smooth and orderly exit from the EU. The Bill is not about revisiting the arguments of the referendum. It is not about our future relationship with the EU, nor is it a vehicle for policy change. It is only part of the programme of legislation required to honour the referendum result.

The Bill begins by repealing the European Communities Act 1972, returning control of our laws to London, Edinburgh, Cardiff and Belfast. The Bill takes a snapshot of EU law that applies in the UK immediately before exit day and ensures that it will continue to apply in the UK afterwards. This will mean that, as far as practical, the same laws will apply the day after exit as the day before. Without this, a large part of our law would fall away when the ECA is repealed.

The Bill also ensures that questions about the meaning of retained EU law will be decided by UK courts in accordance with the case law of the European Court of Justice and the retained general principles of EU law as they stand immediately before exit. This approach maximises stability, ensuring that the meaning of the law does not change overnight. Only the Supreme Court and the High Court of Justiciary in Scotland will be able to depart from the European Court’s retained case law. Future decisions of that Court will not bind ours, but they will be able to have regard to those decisions if they consider it appropriate, in just the same way that they might refer to cases in other jurisdictions such as Australia or Canada.

My Lords, while the conversion of EU law into UK law is essential to ensure that we leave smoothly, simply preserving EU law is not enough. There will be many areas where the preserved law does not work as it should. So the Bill provides Ministers in the UK Government and the devolved Administrations with limited powers to make secondary legislation to address the problems that would otherwise arise when we leave.

These powers allow us to make appropriate changes to ensure our statute book works on day one and provide the UK Government and the devolved Administrations with the discretion that this unique situation calls for. This includes ensuring that Ministers can make the most appropriate choice where a range of corrections are available. This discretion is limited, however, as are the powers themselves. Failing to correct deficiencies in the law would have practical consequences ranging from public authorities submitting reports on water quality which the European Commission will not read, to causing disruption to the City by removing the supervision of credit rating agencies.

The Bill contains several other powers, including a power to implement international obligations and, following a government amendment in the other place, a power to alter exit day in the Bill if the UK and the EU agree to change the date the treaties cease to apply to the UK. Notably, Clause 9 of the Bill provides that the UK Government and devolved Administrations are able to implement the outcome of the negotiations on the withdrawal agreement with the EU. However, following a vote in the other place, the use of this power is now subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal.

The Government have always been clear that major changes will be given effect through primary legislation, but to correct all the EU law that has accrued in the 46 years of our membership is simply not practical to do via primary legislation. Many of these corrections will be largely technical. It is important that all these changes are scrutinised, but they are of exactly the type for which secondary legislation exists. Although I understand the concerns about so-called Henry VIII powers—I am sure we will be debating this at length in your Lordships’ House—it is not so unusual to take powers to amend primary legislation where that can be explained and justified. It is the content of the changes being made, not where in the statute book they sit, that matters.

The Government have been clear that a separate withdrawal agreement and implementation Bill will be used to implement the major elements of the withdrawal agreement between the UK and the EU, including an implementation period pending the negotiation of the precise terms. That Bill, along with several other pieces of legislation required for exit, will come before the House in due course.

Finally, I turn to the Bill’s devolution provisions. We are guided by two key principles. First, we want a functioning statute book on exit; secondly, we want there to be no new barriers to living in and doing business across the UK. So I reiterate that no power whatsoever that is currently exercised by the devolved Administrations will be removed by this Bill. We have a strong record on devolution through the Scotland Act 2016 and the Wales Act 2017, where more powers passed to the devolved Administrations; and we have repeatedly made clear our expectation that there will be a significant increase in the powers of the devolved Administrations as a result of leaving the EU.

We will shortly be publishing our initial framework analysis, which will show that in only a minority of policy areas where EU law intersects with devolved competence do we expect to require a UK-wide legislative framework. Noble Lords will be aware of the Government’s commitment to bring forward amendments to Clause 11, the main devolution provision of this Bill. We, the Scottish and Welsh Governments are part way through a process to shape those amendments and are making good progress. In the absence of an Executive and Ministers in Northern Ireland, discussions are taking place with the Northern Ireland Civil Service, but the Government’s priority remains restoring devolved institutions. This is a complex area that we need to get right, and I hope these amendments will put us on the best possible footing to achieve legislative consent, which remains our overarching objective.

This Bill has been the subject of extensive scrutiny in the other place, and the Government listened and responded to the issues and questions that were raised. Acknowledging concerns about the impact that withdrawal could have on equality law, the Government made amendments requiring Ministers to make a statement alongside statutory instruments made under the Bill setting out whether they amend, repeal or revoke any provision of equality law and, if they do, the effect that has. The amendment also requires Ministers to make a statement that they have, so far as required by equality legislation, had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act 2010.

There was extensive debate on the Charter of Fundamental Rights. The Government’s position on this is clear: the charter reaffirms the rights found in EU law, which will be brought into UK law by the Bill. It is not, and never was, the source of those rights. The absence of the charter will not affect the substantive rights available in the UK, which is why the Government published an analysis of the charter setting out how each substantive right within it will be reflected in UK law after we leave. This analysis looks at how each right flows through retained EU law and how it is otherwise protected by existing domestic or international law after exit. The Government also brought forward amendments preserving some EU-derived rights of challenge for a period after exit.

The Government listened to concerns about scrutiny of secondary legislation, welcoming amendments proposed by the Commons Procedure Committee to establish a Commons committee to sift statutory instruments made under the key powers in this Bill. This House brings a raft of expertise and experience to the process of scrutinising our exit through the Constitution Committee, the EU Committees, the DPRRC and the JCSI, as well as our well-established system for scrutinising secondary legislation through the SLSC.

My intention is that we should build on those strong foundations and incorporate the changes embodied by the new Commons committee into the terms of reference of the SLSC to allow it to recommend, within 10 sitting days, that the House’s consideration of specific negative instruments related to this Bill should follow the affirmative procedure to bring it in line with the procedures established in the other place. I am conscious that, as well as altering its terms of reference, the SLSC would temporarily need additional resources, both in terms of expert advice and members, to allow it to do this work.

I have already had constructive initial discussions with the chairmen of the relevant committees, the usual channels and the House authorities. I will bring detailed proposals before the Procedure and Liaison Committees for consideration in March, and the House itself will then be invited to agree the proposed approach. The Government are fully prepared to bring forward any necessary amendments to this Bill.

Not for the first time, there has been much speculation about what might be expected from your Lordships’ House as we consider this Bill. Some suggest that this House will ignore the referendum or attempt to use the Bill to frustrate the Brexit process. I do not share those concerns. I am keenly aware of the collective sense of responsibility felt across this House to our important constitutional role and I am confident that noble Lords will take a constructive approach to our deliberations. I am also very confident that those deliberations will be thorough and very challenging, which is exactly as it should be. As I have said on other occasions, noble Lords bring a wealth of expertise to our proceedings, and it is precisely when we do this that we show this House at its best. I also know that noble Lords respect the primacy of the elected House and the decision of the British people. I hope that the approach taken in the other place demonstrates our willingness to listen carefully to constructive suggestions and to engage with noble Lords across the House as our country takes this big step.

My noble friends Lord Callanan, Lord Duncan, Lord Bourne and Lady Goldie, and my noble and learned friend Lord Keen, will join me in listening carefully to the debate, and my noble friend Lord Callanan will tomorrow endeavour to respond to as many noble Lords as possible—the first of many challenges he will face as he takes this Bill through your Lordships’ House. He will also be responding to the Motion in the name of the noble Lord, Lord Adonis.

Untangling ourselves from the EU legal order is complex, but we approach it in good faith. We have never said that we would get everything right on our own. We have always been clear we would listen to constructive suggestions for improvements. We have a duty before us to deliver on the will of the British people to leave the EU, and to do so in a way that provides certainty and stability. The Government’s goal is one we all share: ensuring that the UK has a functional statute book after we leave. I look forward to the many debates we will be having over the coming weeks, and I beg to move that this Bill be read a second time.