European Union (Withdrawal) Bill

Baroness Goldie Excerpts

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

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I do not like to start by contradicting my noble friend, but I have not heard the Government ask that we leave the Eurovision Song Contest, so there is one thing they are content with despite the name containing “Euro”.

This amendment is important not simply for the amount of money being spoken about but what it is used for. I think I heard the noble Lord, Lord Callanan, say from a sedentary position “It is our money”, somewhat missing the point of the amendment, which is about having regard to the principles of social and economic cohesion which we signed up to, welcomed and have benefited from. In fact, it is particularly important given the drive to equality whether in this country, Europe or both. The noble Lord, Lord Wallace of Saltaire, reminded us that England has the deepest regional disparities of any country in Europe. That is why it is not just the money, although I will come on to that, but what we want to use it for and how, and the need for a long-term aspect, as my noble friend Lord Adonis said.

This article enables funds to be used in a way that particularly led to our disadvantaged regions benefiting enormously from the Cohesion Fund, the European Regional Development Fund and the European Social Fund. In the period 2014 to 2020, they will have brought £12 billion our way, and it is not simply the money but the way it is aimed to reduce disparities and concentrates on what the EU calls less developed, transition or other regions. These are significant amounts, but it is the aims and objective that are important. They help create jobs, with start-up businesses, and with research and development. They have had a particular impact in Cornwall, west Wales and the valleys—some of us have to declare an interest there. We have heard of particular cases which have already benefited from this sort of money, including through the environmental impact of some of them, as mentioned by my noble friend Lady Young.

The important thing now is to look forward. As we have heard, the Government, in preparing for our departure from the EU, committed themselves to what they call a,

“UK Shared Prosperity Fund … using money returning to the UK from European structural fund”—

if it has not already gone to the NHS or anywhere else. The idea, as laid out in the Conservative manifesto, is to use that same amount of money. The Exchequer Secretary, Robert Jenrick, promised,

“to consult widely ahead of its launch”.

However, he did not commit to matching ERDF funding after Brexit, so the consultation would presumably be about its use. We have been told:

“The design … is currently being considered, including its funding arrangements, and further details will be set out in due course”.


Although he is not replying to this amendment, the Minister often reminds me that in a year and a month today, we are due to leave. That is not much time for getting these details, even in draft form, let alone for consultation or beginning to think about how people might use these funds. There is undoubtedly some urgency.

I hope that we could maybe have that detail from the noble Baroness as well as the basis on which the Government are planning to allocate the money. Will it be, as we heard suggested, under the Barnett formula, which is on a per head rather than per need basis? Will it be long term? What will the other attributes be? Will it be whoever wants matching funding or something else? Will it be concentrated in the same sort of areas as before? These are important questions, as I am sure she appreciates. It is a matter of funding, otherwise we might lose £8.4 billion from the sort of work that has been done to reduce inequalities. We need to know not just the amount but that it will be targeted towards achieving the same sort of ends as Article 174.

[Baroness Goldie (Con)]

My Lords, first, I thank your Lordships for a genuinely interesting and very helpful and useful debate. I particularly thank the noble Lords, Lord Foulkes, Lord Judd and Lord Wigley, for the amendment to which they put their names. I again thank the noble Lord, Lord Adonis, of course for his kind remarks, although I fear he will dismiss me as a huge disappointment when he listens to my observations. I will try to deal with the points raised, because the amendment raises a very important issue, around which numerous very legitimate questions arise. I do not dispute that for one moment. Although I will not be able to answer every point raised in detail, I will do my best to try and give a helpful—I hope—indication of the direction of travel.

I know the amendment is well intentioned, but I shall endeavour to argue that, with the existing proposals which the Government have put in place, it is unnecessary. I will explain that in greater detail and expand on that proposition. The Government have an industrial strategy that covers many of the areas of cohesion policy and, as numerous noble Lords mentioned, are developing a new UK shared prosperity fund, which will replace EU structural funds. Furthermore, existing legal powers in place in this country in our domestic law already cover some of these issues, and I shall expand upon that.

To reassure the noble Lords, Lord Foulkes, Lord Wallace of Saltaire and Lord Judd, who all referred to this, I say that the Government have a manifesto commitment to replace cohesion policy funding with a new UK shared prosperity fund. It will reduce inequalities and raise productivity across our four nations, and we shall engage extensively with the devolved Administrations on that fund later this year.

[Lord Foulkes of Cumnock]

The Minister said that the Government would consult about the shared prosperity fund later this year. We are already 21 months past the referendum and, as my noble friend Lady Hayter said, have just over a year to go. When are we going to get the proposals? When are the people hoping to benefit from this actually going to see it? When is the consultation going to start? I hope the Minister will not say “shortly” but will give us some clear indication because, as my noble friend said, people are desperate to see it and to know the details.

[Baroness Goldie]

I shall come on to that and endeavour to address the points that the noble Lord has raised. I was merely going to observe to the noble Lord, Lord Wallace of Saltaire, who was concerned about what he saw as a sort of Home Counties-centric Administration, that, looking at this Front Bench, there is not much Home Counties representation here, with the honourable exception of the bicycling baronet. Across this Front Bench there is a genuine understanding of all parts of the UK—including, to be fair, the Home Counties—and that is very important. The Government are very anxious to reflect the pan-UK need and relevance in conceiving and constructing policy to address the issues that are the subject of the amendment.

As I understand it, the noble Lord’s amendment seeks to transfer the provisions of Article 174 of the Lisbon treaty, which provides the legal basis for EU cohesion policy, into UK law. Indeed, that policy is one of the key policies of the EU, as the noble Lords, Lord Foulkes and Lord Wigley, recognised. It recognises the importance of reducing inequalities between communities and reducing disparities across the EU. At the same time, leaving the EU allows the UK to begin to take its own decisions on the future of regional development. Arguably, perhaps, it will be better placed to ensure that those are better tailored to UK priorities rather than the priorities of the EU.

The noble Earl, Lord Listowel, raised important points, to which I listened with care. I think they are more a matter for the Ministry of Housing, Communities and Local Government and the revenue support grant, but I am informed that the local government financial settlement has allowed additional flexibility in meeting costs for adult social care, which I understand has been widely welcomed.

[The Earl of Listowel]

I thank the Minister for saying what she has said. That is true about adult social care, but we need the same arrangement for children’s services. That is my concern; I do not think it has come in. If she could say during the passage of the Bill that that will indeed be made available for children’s services, that would go a long way towards assuaging my concerns in this area.

[Baroness Goldie]

I assure the noble Earl that I am listening to what he says.

The noble Lord, Lord Adonis, specifically raised the issue, which I will deal with here, of UK access to the European Investment Bank. The UK wishes to explore options for maintaining a relationship with the EIB in the second phase of negotiations. To avoid doubt, I say that the UK will leave the EIB when it ceases to be an EU member state, but that is all I am able to tell him at the moment. I think that will be an important feature of the second phase of negotiations. He rightly identified that the bank has been an important source of investment finance.

The noble Lord, Lord Foulkes, rightly wants to know the shape of all this and what the Government are actually doing. If your Lordships will permit me, I shall try to outline the situation. The Government have already set out their long-term strategy in many areas covered by the noble Lord’s amendment. In November, my right honourable friend the Secretary of State for Business, Energy and Industrial Strategy launched the Government’s industrial strategy, which sets out the long-term plan to boost the productivity and earning power of the UK. It sets out how we will help businesses to create better, higher-paying jobs in every part of the UK with investment in the skills, industries and infrastructure of the future.

The strategy will boost productivity and earning power across the country by focusing on five foundations of productivity. It is worth repeating them: ideas, people, infrastructure—in that connection, let me say that I listened with interest to what the noble Lord, Lord Adonis, said about the value of long-term strategic thinking; he made a number of important points, which the Government will want to bear in mind—business environment, and places.

All these foundations have links to cohesion policy, but it is perhaps that final foundation which is most relevant: places. This recognises that every region of the UK has a role to play in boosting the national economy, including North Yorkshire, to which the noble Lord, Lord Wallace of Saltaire, referred. The UK has a rich heritage, with world-leading businesses located around our country. Yet—and this is disappointing —many areas are not fulfilling their potential, and that despite receiving cohesion policy funding. The UK still has greater disparities in regional productivity than other European countries.

The challenges and opportunities facing us are shared across the union. We recognise that the devolved Administrations are acting to identify and deliver their own priorities, and we respect the devolution settlement. But devolution has never meant that the Westminster Government should stop delivering for people, businesses and places in the devolved nations.

As part of the industrial strategy, we will agree local industrial strategies that build on local strengths and deliver economic opportunities. We want to work with all relevant bodies in England and partners in the devolved nations to consider how local strategies can deliver for places in Scotland, Wales, Northern Ireland and, of course, England. I hope that that to some extent reassures the noble Baroness, Lady Hayter, who asked how all this would flow out across the UK. We are also introducing a new £115 million strength in places fund to build excellence in research, development and innovation across the UK.

We are already seeing the opportunities and benefits of a focus on places. In the year that we launched the northern powerhouse project, we saw productivity in the north rise at a faster rate than London and the UK average. We have also seen further exciting developments outside England. Our city deal programme demonstrates how the UK Government can work hand in hand with our partners in the devolved Administration Governments and local authorities to deliver co-ordinated, locally led interventions that have a real impact on local economies. As confirmed by the Chancellor in the Budget, we are currently working with regional representatives from Stirling and Clackmannanshire, the Tay cities, Belfast, north Wales and the border lands between Scotland and England to negotiate new city deals.

Meanwhile, under the people foundation, we also want to tackle regional disparities in education and skill levels so that we build on local strengths and deliver opportunities for people wherever they live. The industrial strategy will do this through a major programme of reform to ensure that our technical education system can stand alongside our world-class higher education system and rival the best in the world. There will also be investment of an additional £406 million in maths, digital and technical education, helping to address the shortage of STEM skills.

The industrial strategy recognises the importance of ensuring that all areas in all parts of the United Kingdom can meet their full potential. The strategy recognises that every region of the UK has a role to play in boosting the national economy, but the noble Lord’s amendment refers to a number of specific types of region in particular, including regions which suffer from what he described as demographic handicaps, and rural areas. These are very important matters. In responding to the challenges of demographic handicaps, the industrial strategy recognises these. The ageing society grant challenge aims to bring an innovation, productivity and growth lens to the challenges and opportunities of our ageing population.

[Lord Foulkes of Cumnock]

With respect, these are fine words beautifully delivered, but the word “guarantee”, which my noble friend Lord Judd mentioned, has not appeared so far. Will all those projects, three or four of which I described, and which reasonably expected funding right up to 2020, be guaranteed funding under the strategy described by the noble Baroness?

[Baroness Goldie]

The noble Lord would not expect me to be able to deliver specific information on figures. That would be unreasonable, but he knows that the Government fought an election on a manifesto commitment to replace the cohesion policy. I am outlining the structures on which the Government propose to base replacing that cohesion policy. I am trying to outline how that strategy has been constructed to have regard to the whole of the United Kingdom and to deal with the issues about which the noble Lord has expressed concern in his amendment.

[Lord Judd]

The noble Baroness says it is unreasonable to expect figures, and there is a certain amount of sympathy with her on that. However, is she really telling us that she cannot guarantee that any projects in train, those planned on the basis of agreements, or any undertakings will be fulfilled?

[Baroness Goldie]

I heard what the noble Lord said and I am coming to that; I hope what I am about to say will reassure him. I am explaining what the new proposals and structures are in order to give some context to my response to what is a very important amendment. The amendment also refers to rural areas. The Committee will be aware that my noble friend Lord Gardiner is the Government’s rural ambassador. He is working to ensure that government policy is addressing the challenges faced by rural areas. The House will recall that the noble Lord, Lord Cameron of Dillington, carried out a review in 2015 on the effectiveness of the Government’s rural-proofing policy, to which the Government responded. They have taken action based on his recommendations. That now includes practical guidance published by Defra to ensure that government departments make rural issues a routine policy consideration.

Looking beyond England, the devolved Administrations obviously have responsibility for rural policy, and I know that Scottish and Welsh Ministers will be thinking about how to ensure that their own policies and initiatives reflect the needs of rural communities. The Government’s industrial strategy and other existing policy initiatives therefore already cover the areas covered by the EU cohesion policy, which the noble Lord’s amendment seeks to preserve.

[Lord Wigley]

One of the core principles of the EU cohesion funds is the element of additionality. In previous UK regional policies, before we went into the EU structural funds from 2000 on, there was not that element of additionality, and initially the UK Government refused to recognise the need for additionality for European funding. Can the Minister therefore give an undertaking that the funds that will replace the money now coming from Europe will be additional, over and above existing regional policy?

[Baroness Goldie]

What I can say to the noble Lord is that we are in new territory. We are leaving the EU and having to construct successor policies and funding streams to deal with what we were accustomed to as a member of the EU. I have tried to explain what the principal strategy underpinning that would be, but as the noble Lord is aware, there are other funding sources. There is the United Kingdom shared prosperity fund, which will be a very important source of the funding streams to which I think he alludes. Before I come on to that, I shall deal with matters raised by the noble Lord, Lord Judd, because they are important.

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[Lord Wallace of Saltaire]

Can I ask an additional question? Interreg is very much about cross-border schemes and co-operations. As we all now understand, there is one very important cross-border relationship, which we have somehow to maintain, between the United Kingdom and Ireland. Will the Government’s devolution of these funds back to national level include a specific Irish co-operation dimension?

[Baroness Goldie]

It will in as much as, post Brexit, the United Kingdom will work within each of its component parts, which obviously includes Northern Ireland. I anticipate that discussions would principally rest in that respect on the subject of the question that the noble Lord has raised.

[Lord Wallace of Saltaire]

Not necessarily with southern Ireland?

[Baroness Goldie]

I think that, in the first instance, as we look at how we will fund different parts of the United Kingdom, the primary discussions will be with those parts of the United Kingdom—they would have to be. That is without prejudice to the Executive in Northern Ireland, who I hope will be established. We will want to pay proper respect to that Executive when they are constituted and consider what they want to do. I would be very surprised if there were not a desire to have constructive discussions with the Republic of Ireland in the interests of trying to determine how best to address these needs, if there is a relationship. The Republic of Ireland, at that point, will be an international country separate from the United Kingdom, as it will be in the EU and the United Kingdom will not. We have to respect these new relationships and new boundaries.

[Lord Wigley]

This will be the last time I trouble the noble Baroness. On the Interreg question, one area that has benefited greatly has been the western Wales coast, particularly the seaports with their connections with southern Ireland. Given the pressure that there will be on Holyhead and other ports arising from Irish trade coming through the UK, surely this is an area where a version of Interreg has a very significant role to play. Can the Minister keep that in mind as the thinking on these issues develops?

[Baroness Goldie]

I thank the noble Lord; I think he raised an important point. The Government, as my noble and learned friend Lord Keen said, are very keen to listen. One benefit of debates like this is that points arise which merit careful consideration, so I thank him for raising that point.

The amendment strayed on to a more technical area. It would create provision for a Minister of the Crown to make provisions for programmes to implement cohesion policy domestically. I argue, however, that these powers are unnecessary. For example, under Section 126 of the Housing Grants, Construction and Regeneration Act 1996, the Government already possess power to provide financial assistance for the areas currently supported by EU cohesion policy and European structural funds. It allows the Secretary of State to give financial assistance in activities that contribute to the regeneration or development of an area, which include contributing to or encouraging economic development, providing employment for local people and providing or improving training services for local people. These activities cover much of the support provided under current European structural funds.

I have tried to set out why I think the noble Lord’s amendment is not required. The Government already have an industrial strategy which covers many of the areas of the amendment. There are also existing powers in place that make the amendment unnecessary. I have endeavoured to outline our plans for new funding to replace cohesion policy programmes—I appreciate that it has not perhaps been with the detail that the noble Lord might be seeking, but I hope I can reassure him that there is a plan to provide successor mechanisms to the European funding sources. I hope I have tackled his concerns and I urge him to withdraw his amendment.

[Lord Foulkes of Cumnock]

My Lords, this debate has ranged rather more widely than I had expected, and the noble Baroness has given us a very comprehensive answer, for which I am grateful. I was particularly intrigued by the reference by the noble Lord, Lord Wallace of Saltaire, to George Thomson, who I remember very well. I see that the noble Lord, Lord Steel, is here; he will remember George Thomson, who represented Dundee before he became a Commissioner and was responsible for this major development within the European Community that we are talking about today.

He once told me that he was very excited at being selected as the candidate for the Member of Parliament for Dundee. He was employed by DC Thomson at the time and went to tell his employer that he had been selected as the prospective parliamentary candidate. He thought that his employer would be delighted. Instead, his employer said, “You realise if you’d stayed with us you could have gone on to be the editor of the Beano”. So instead of being editor of the Beano, he went on, thankfully, to do a very good job in the European Community.

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[Lord Beecham (Lab)]

My Lords, I start by affirming that we on these Benches—or what is left of us—support the thrust of Amendments 26 and 28, which deal with significant issues raised in Clause 4. As the Constitution Committee avers, as drafted,

“Clause 4 will … domesticate all directly effective treaty provisions, whether or not they will be capable of meaningful application”.


What is the point of such an outcome? What is the point of creating a situation under which in the case of domesticated provisions which have,

“no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions”?

More substantively, what is the Government’s response to the damning conclusions of the committee in paragraphs 37 and 38 of its report? These describe the implications of the Bill for reciprocal rights as “uncertain” and state:

“The full impact of Brexit on reciprocal rights will not be known until the UK’s future relationship with the EU is determined”.


What is the Government’s position on this issue?

Given the concerns of the committee, what, if any, estimate have the Government made of the consequences of the Bill’s impact in this area, and what is their response to the committee’s observation that:

“The ambiguities in the interpretation and effect of clause 4 will inevitably cause legal uncertainty about a fundamental provision of the Bill. This will undermine one of the Government’s main objectives in bringing forward this Bill”?


The committee concludes its observations on this part of the Bill by stating starkly:

“The ambiguities need to be resolved”.


Does the Minister agree that there are ambiguities? If so, how and when will the Government address the problem?

[Baroness Goldie]

My Lords, I rise to respond to these amendments with one very clear thought in my mind: I wish my noble and learned friend Lord Keen were standing at this Dispatch Box. We are dealing with issues that are clearly perplexing much greater intellects than mine, but I shall do my best. These amendments, tabled by the noble Lords, Lord Krebs and Lord Pannick, concern the operation of Clause 4 and I am grateful for the opportunity to further explain and discuss the Bill’s approach to directly effective provisions arising from EU directives, one of the issues raised by these amendments.

As the Committee is aware, one part of EU law that the Bill is not converting into our domestic law is EU directives. The reason for this is clear: as they are not a part of our domestic law now, they should not be after we leave the EU. Indeed, my noble and learned friend Lord Mackay of Clashfern made this point very succinctly in the earlier debate. Instead, the Bill is saving the domestic measures that implement the directives under Clause 2, so it is not necessary to convert the directives themselves. My noble and learned friend Lord Keen clarified that in the earlier debate. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease and it makes no sense to retain the direct effect of this category of law within our domestic law.

However, the Bill recognises one important exception to this approach: where, in a case decided or commenced before exit day, a domestic or European court has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will provide for that right, power, et cetera, to continue to have effect in domestic law.

The debate seemed to centre around the nub of phrasing in Clause 4(2)(b). In the earlier debate the noble Baroness, Lady Ludford, raised the interesting question of what “kind” means in the phrase “of a kind”. That question was repeated by the noble Lord, Lord Pannick. In Clause 4(2)(b) “of a kind” is to be read in the context of a right recognised in a decided case. Rights recognised in particular cases are often described in specific terms particular to that case and to the individual who has brought the action. The phrase “of a kind” is designed to ensure that comparable rights particular to other cases and individuals are also retained by Clause 4 but in respect only of decisions pertaining to that same directive. It is the opinion of the Government that this strikes the right balance, ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty in our statute book about what will be retained in UK law at the point of exit. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, encapsulated that point very neatly.

The amendment of the noble Lord, Lord Krebs, which is similar to the one tabled by Lord Pannick, would instead remove this balance. These amendments could have the effect that pre-exit directives would give rise to a directly effective right that has not previously been identified, for an unspecified period after our exit. Such rights would therefore become part of our law. The Government have always conscientiously implemented EU legislation, in accordance with our obligations as a member state, but once we are no longer in the EU, we should have no enduring obligations in relation to the implementation of EU directives. To accept these amendments would be to undermine the certainty that this Bill seeks to achieve. Businesses and individuals will be placed in the difficult position of not knowing when their rights might change, and our courts could face practical difficulties.

The amendment of the noble Lord, Lord Krebs, goes even further. It would place Ministers under a continuing duty and obligation to make regulations where there has been incorrect implementation of any of the EU law that is retained through Clause 4. I would argue that this provision is harmful for several reasons, and it would not be consistent with the principle that we are separating our domestic statute book from that of the EU.

First, binding Ministers to legislate to give effect to any incomplete or incorrect directly effective EU law retained through Clause 4 would effectively require the UK to act on obligations of implementation relative to the EU framework that it was no longer under—a situation that would be simply inappropriate following exit day. Such an approach would impact on the certainty that the Bill aims to provide in our domestic statute book. By potentially allowing developments in the EU to continue to flow into UK law past the point of exit day, the clear snapshot—I know some Members do not care for the term but I think it is the best term we can come up with—taken by the Bill will be distorted, giving rise to confusion about what our law actually is and where it comes from.

[Lord Krebs]

The Minister has just said that it would be inappropriate to rectify omissions or incorrect translations. But if the overall aim of the Bill is to move what is currently governed by the EU into UK law and, as it happens, maybe by accident or some other reason, we have made a mistake in the past, surely it would be right within the overall aims of the Bill to rectify errors in the translation, rather than to say, “We made a mistake in the past so we will persist with the mistake”. I just do not understand the logic of not wanting to rectify mistakes.

[Baroness Ludford (LD)]

Can I repeat something that I have raised in the Chamber before and about which I had correspondence with a Minister? The European Investigation Order, one of the directives cited by the Prime Minister in her Munich speech that she wants us to stay part of, was transposed at the end of last year into UK law, but incorrectly. It is like a European arrest warrant, but for evidence. Instead of saying that it could be opposed on the grounds that it breaches the European Charter of Fundamental Rights, which is what the directive says—I know, because I was one of the MEPs who battled to get that in—it says that it could be refused if it breaches the European Convention on Human Rights, which is not an EU measure. That has therefore not been transposed correctly. What is the status after exit day? Can someone challenge an EIO on the grounds that it breaches the charter, or only on the grounds that it breaches the convention?

[Baroness Goldie]

In response to the noble Lord, Lord Krebs, and the noble Baroness, Lady Ludford, we must go back to the fundamental principle of this Bill, which is that we have to have a cut-off point and beyond that point, law-making will revert to the United Kingdom. If there are corrections or incompletions or other matters that we are required to address, we can do that through domestic legislation. That is what any Government of any complexion would want to do. The matters referred to by the noble Lord, Lord Krebs, might take years to emerge. Therefore, it would be essential for Governments to pay attention to whatever was emerging, some of which might be de minimis. We do not know, but my argument is that this would confuse and cause difficulty about understanding what our law is and certainly where it is coming from.

I was going on to say in relation to the amendment of the noble Lord, Lord Krebs, that there is a lack of clarity regarding when exactly Ministers would have the duty to make such regulations under this amendment. Is it intended that all the instruments that currently give effect to EU directives should be reviewed so that such regulations could be repaired? Such a review would have considerable resource implications for both the Government and Parliament, and that should not be underestimated. Furthermore, it would be unnecessary: as I have already mentioned, while the UK has been a member of the EU, we have sought fully to meet our obligations and give effect to EU law in accordance with them. In the case of implementing directives, we have conscientiously discharged our obligations. To require potentially a proactive review exercise, as the noble Lord’s amendment could require, is, in my submission, pointless.

I have tried to address the concerns and issues raised; I believe the effect of these amendments would be profound, undermining the Government’s clear and coherent position on retained EU law. I hope I have explained in sufficient detail why the current design of Clause 4 is right and appropriate, and I would therefore ask both noble Lords not to press their amendments.

[Lord Pannick]

I thank all those who have spoken in this debate, and in particular the noble Lord, Lord Krebs, whose amendment I support. I said in opening this debate that I, and the Constitution Committee, found Clause 4(2)(b) very difficult to understand. I am reassured that even the noble Lord, Lord Carlile, with his experience dating back to 1361, with the Justices of the Peace Act, finds it puzzling.

The position is this: there is no dispute—it is well established in the case law of the Court of Justice—that an unimplemented directive does have direct effect and confers individual rights in national courts where it is clear and precise and unconditional. I understood the Minister to say that Clause 4(2)(b) is intended to exclude reliance on such a directive after exit day unless there has been a court case before exit day, either in Luxembourg or in this country on that specific directive. I find that a very odd approach—it certainly is not consistent with the language of Clause 4(2)(b) of a kind. It does not suggest that you are concerned with a court case on that specific directive.

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[Lord Beecham]

My Lords, at this late hour, I am more than content to rely on the amendment moved by the noble Lord, Lord Pannick, and the questions he has raised.

[Baroness Goldie]

My Lords, this will be brief, because my soulmate and prop has deserted me. With this amendment, the noble Lord, Lord Pannick, has raised what he sees as the potential conflict between the EU law retained under Clause 4 and the domestic legislation preserved under Clause 2. His amendment seeks to ensure that rights, powers, obligations et cetera provided for in EU directives which have been implemented into EU-derived domestic law—and therefore are already subject to an enactment—will not need to have their directly effective provisions domesticated through Clause 4.

The Government consider this amendment unnecessary. To the extent that there is any potential overlap between Clause 4 and Clause 2, this is no different from the situation at present in relation to EU law and how we see it given effect in UK law. A judgment may establish direct effect, and domestic legislation to implement that finding may follow. But this does not cause any practical difficulties now—indeed one process complements the other—so we simply do not agree that there will be practical difficulties under this Bill as phrased.

I am of course grateful for the suggestion made by the noble Lord, Lord Pannick, but the Bill’s position is clear and consistent with existing practice, and his amendment is unnecessary. In these circumstances, I ask him to withdraw it.

[Lord Beith]

The noble Baroness is bringing out an explanation which the committee has already considered and was not satisfied by. As the noble Lord, Lord Pannick, explained, there is a remaining ambiguity. Can I suggest to her that she composes a note to her very good friend, the noble and learned Lord, Lord Keen of Elie, saying she was given a very difficult time over this and that the Government really have to look at it again? If she is agreeable to doing that, we will not spend much time making a fuss about it.

[Baroness Goldie]

I thank the noble Lord very much indeed. I am sure my noble and learned friend Lord Keen does not even need the note. He will know that I have had a very difficult time.

[Lord Pannick]

I am very grateful to the noble Baroness. The problem is, as I sought to explain, that under existing law we know which takes priority: it is EU law. The problem under the Bill is that the EU obligation, which is retained EU law, and the existing domestic implementation, which is also retained EU law, because Clause 2 says so, are in conflict, and the Bill does not provide any order of priority between them. I had assumed that the noble and learned Lord, Lord Keen, had gone off because he wants to sit in the Library and think about the answer to this problem. I very much hope that before Report he will come up with the answer and that this can be resolved. I beg leave to withdraw the amendment.