European Union (Withdrawal) Bill

Baroness Goldie Excerpts

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Beith]

My Lords, I follow my noble friend Lady Ludford in querying what is intended by Clause 7(3) and hope that the Minister will be able to draw on his limited stock of examples to provide me with one—indeed, with something that fulfils this definition:

“There is also a deficiency in retained EU law where the Minister considers that there is … anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2)”.


In that case, why does it not fall within subsection (2)? Can the Minister give me an example of something which subsection (3)(a) would provide for but which subsection (2) has not provided for?

[Baroness Goldie (Con)]

My Lords, this has been a short but interesting debate covering an important point. When my ministerial colleagues in the other place moved the amendment that inserted into the Bill the subsection that Amendment 80 would remove, the Government’s reasoning was accepted by the other place without a Division. That is an onerous responsibility upon me, and I hope I can replicate that performance and satisfy any concerns the noble Baroness has.

As we heard at Second Reading, most of the House accept that the power in Clause 7(1) is essential but, was as said then, the Government are looking forward to using the expertise of this House to tighten any slack in the power and ensure that it is capable of neither too much nor too little. I have just addressed the importance of retaining Clause 7(3)(b), but I repeat that the Government believe we can be a responsible Government only by ensuring that we can provide for all the types of deficiency we discover.

Subsection (3)(a) provides that the meaning of “deficiencies” in Clause 7 includes those of a similar kind to those set out in subsection (2). The noble Baroness, Lady Ludford, and the noble Lord, Lord Beith, asked what this means and whether there are any examples. This ensures that, for example, deficiencies relating to arrangements between public authorities in the British Overseas Territories and the EU and its member states, or between the UK and the EEA and EFTA states are caught by the definition of a deficiency. They are not included in the list in subsection (2) but are very much of a similar kind to the types of deficiencies listed, and it is important that the power is wide enough to allow the Government to correct them. This House accepted at Second Reading the principle of resolving all the deficiencies in retained EU law using the power in Clause 7, and we cannot do this without both a type of sweeper—I think the legal term is “ejusdem generis”—and a power to provide for additional kinds of deficiency if they are later identified. I say to the noble Baroness, Lady Ludford, that that is why the clause is drafted the way that it is.

May I seek clarification from the noble Baroness, Lady Hayter? I was not quite clear whether she wanted to speak to Amendment 82 or whether she is forgoing that for the moment for the purposes of this debate.

[Baroness Hayter of Kentish Town]

I am speaking to only a part of Amendment 82 and to Amendment 82A —in other words, to the bits about not using Clause 7 to remove any rights and standards or to repeal or revoke the Equality Acts 2006 and 2010 or any subordinate legislation made under them. There is obviously much more in Amendment 82. There is stuff about criminal sanctions, raising taxes and setting up public bodies. I was making the point that I am not talking about those now because we have separate groups on those topics. The bit of Amendment 82 and Amendment 82A are about not using this power to make any changes under the Equality Acts.

[Baroness Goldie]

I am very grateful to the noble Baroness. I am looking at my speaking notes. It is a little difficult to disentangle the points to which she has just alluded. If the Committee will indulge me, I will perhaps try to cover the general points.

[Baroness Hayter of Kentish Town]

I emailed the Minister’s advisers very early this morning and spoke to them earlier, so I would hope they had got the Minister’s notes in the right place.

[Baroness Goldie]

I thank the noble Baroness. I shall soldier on as best I can with the material I have. By way of general comment on Amendment 82, I hope I can reassure the Committee that I understand the concerns many noble Lords have regarding the scope of the powers we are seeking to take in the Bill. I shall use this opportunity to allay, I hope, some of the concerns as we look at the general premise of this amendment in relation to the Clause 7(1) power.

The general concern is about the ability to create new public authorities, which was alluded to by the noble Baroness. Let me make it clear that we have been listening to Members of this House and the other place; the noble Baroness is not alone in having these concerns. As such, we have made it a priority to find a solution that will satisfy both Parliament and the objectives of the Bill, and the Government are looking very closely at whether the key powers need to be drawn as widely as they are in this regard. We will revisit this matter in more detail when we reach the amendments in the name of the noble Lord, Lord Newby, but I hope this satisfies the noble Baroness on this point for now and signals our commitment to listen to the concerns of noble Lords.

The noble Baroness, in her amendment, expressed some concerns about the power to create criminal offences. We will come back to this in more detail later in the debate on these clauses when we respond to the amendments in the names of the noble and learned Lord, Lord Judge, and the noble Viscount, Lord Hailsham. If the noble Baroness wishes me to do so, I will deal with that in more detail now, but perhaps that is one of the areas she is happy for us to deal with later.

The noble Baroness also expressed concern about not losing any EU functions. The Government are committed to ensuring continuity, but there are a small number of functions it would be inappropriate for us to transfer to a UK public authority after exit. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Authority for European Political Parties and European Political Foundations. The Clause 7(1) power makes provision to remove these functions, but only if, outside the EU, they were somehow deficient, not simply because the Government disliked them as a matter of policy.

The noble Baroness raised the important matter of maintaining rights, standards and equalities protections, and I want to make it clear to noble Lords it is not the intention of this Government to weaken these as a result of our exit from the EU. It is for that very reason that it is necessary for Ministers to have the ability to make adjustments to any relevant legislation to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no longer part of the EU.

To reassure noble Lords of the Government’s commitment to ensuring transparency around any amendments made to equalities legislation, we tabled an amendment in the other place that will require Ministers to make a statement in the Explanatory Memoranda of all SIs made under this power and the Clause 8 and 9 powers confirming that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010.

Would the noble Baroness like me to respond on data protection? It is very helpful to get that reassuring shake of the head. In conclusion, I thank the noble Baroness for perhaps simplifying the matters immediately before us. I hope that the points I have raised in addressing her first amendment, and then those parts of her Amendment 82 she is concerned about, are enough to demonstrate the need for the power to have such scope and to be able to address all the deficiencies, including those alike to the types listed in Clause 7(2). In these circumstances, I urge the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Baroness Goldie]

I would say to the noble Baroness that our elected counterparts in the other place were able to scrutinise this Bill in detail. The Government were transparent in what they were doing when they brought forward the amendment that passed without a Division. Indeed, it was for Members of that place to raise objection to the way in which the amendments were structured, and I understand that no such objections arose—and at the end of the day, it passed without a Division.

Let me deal with the substantive point raised by the noble Baroness. I was trying to explain that if we accept the principle, as the House appears to, that we need this corrective provision to let us deal with deficiencies on withdrawal, the Government are trying to ensure that there is a flexibility. I made it clear in responding to the noble Baroness, Lady Hayter, that this is about having the powers to do what we need to do, but being conscious that we do not want these powers to enable Governments to do too much. It is equally important that they are empowered to do what they need to do and that the powers do not restrict them so that they are only able to do too little.

Part of the difficulty with the complexity of what confronts the statute book is that there is a degree of unpredictability in the events with which we are dealing. We do not know quite what difficulties may arise. That is why there is a desire to build in the flexibility created by Clause 7(3). I did endeavour, in responding to the point raised by the noble Lord, Lord Beith, to give an example of the kind of things that are not in Clause 7(2) but would actually be covered by subsection (3). There is no further comment I can make to the noble Baroness, other than to repeat my reassurance that the Government are anxious to work with this House in trying to make sure that this clause is responsible, but also workmanlike and capable of managing the difficult situations that may arise, so that action can be taken to correct deficiencies without harm being caused because the power does not exist to do that.

[Lord Adonis]

I took it as quite a significant move on the Government’s part for the noble Baroness, Lady Goldie, to say that she was open to discussions about limiting the power to create new public bodies—and it is one that we welcome. That power, I know, has caused concern in the House. The noble Baroness has shown herself to be so emollient that we very much hope to hear a great deal more from her in the next six days of Committee. We will welcome her presence at whatever hour of the night she wishes to speak.

[Baroness Goldie]

I am not one to spurn the comments of attractive gentlemen, particularly when they are honeyed compliments uttered by the noble Lord, Lord Adonis. As I have said in previous debates, I may not always be able to acquiesce on points that he makes, but I understand that my noble friend the Minister is prepared to look again at the creation of new bodies. I cannot provide further detail at this stage, but it is an area where we have an open mind.

[Baroness Hayter of Kentish Town]

I thank the noble Baroness for that. Obviously, we will come on to a grouping of amendments specifically about public bodies—perhaps even tonight. I will deal firstly with the amendment to take out Clause 7(3) on page 5. I was a little worried when the Minister said that it allowed some flexibility—which I take to mean wriggle room, or wanting to do something that is not quite allowed for. The noble Baroness, Lady Ludford, described the problem of subsection (3) better than I could. Our concern is partly that we are again back to the implications of where the Minister considers something—which is a very wide way of saying that where a Minister considers, without any test, they can then define something as “similar” to another deficiency. We may have to return to this, because I do not think that it is robust enough.

Her particular example did not help her case, given that Clause 7(2)(d)(i) involves the EU, an EU entity, a member state, or a public authority and a member state. EFTA and NATO must be the only other two bodies: could we just not write those in? To put in a whole clause just to allow for EFTA does not seem to me, with all that discretion, very appropriate. So I think we may want to return to that.

Amendment 82, as amended by Amendment 82A, is very much about not using regulations to amend, repeal or revoke either the Equality Act 2006 or the Equality Act 2010—or, indeed, to reduce any right conferred on a person by retained EU law, if it were to be made less favourable. The Minister may have said that that was not the intention but, without the words in our amendment, clearly that would be possible. For the moment, I hope that we can revert to the specifics, such as public bodies, taxes and criminal offences and put that to one side. However, we may need to return later to subsection (3). I beg leave to withdraw the amendment.