European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, it is indeed striking that directives are not included in Schedule 5, part 1, paragraph 1(2). The reason may be that directives are given a very odd status under Clause 4(2)(b), which we debated on a previous day. Under Clause 4(2)(b), retained EU law does not include rights which arise under an EU directive when they are,

“not of a kind recognised by the European Court or any court or tribunal”,

in this country,

“in a case decided before exit day”.

We debated the complexities, the uncertainties and, as I see it, the unsatisfactory nature, of the clause. Is that the reason why directives are not included in Schedule 5, part 1? If not, what is the reason?

[Baroness Ludford (LD)]

My Lords, I support my noble friend’s valuable amendment. I wonder whether the Government are being as transparent as they ought to be. After all, there have sometimes been well-founded suspicions of gold-plating of directives and, in contrast, of not entirely full or accurate transposition of directives. I am sorry to repeat myself, but I gave the recent example of the European investigation order, which was not transposed in regulations last December with exactly the wording in the directive. The European Convention on Human Rights has been substituted for the charter, which is in my opinion a breach of the accurate transposition of the directive.

Not only during the transition but well into the future, businesses and all citizens will be obeying a lot of the acquis of EU law, if the Prime Minister’s emerging strategy of staying plugged into many EU policies and agencies one way or another comes to fruition. Therefore it is right for businesses and individuals to be able to see how EU law in directives, which unlike regulations, does not have direct effect, has been translated, transposed into UK law, so that they can track its accuracy. This is a long-running theme in the European Parliament, as my noble friend will know. Indeed, the Minister will know that there was an attempt to campaign in the European Parliament to have what was known in the jargon as “correlation tables”. It was possible to see exactly how EU law had been translated into national law in all EU states.

Funnily enough, the member states never wanted that to happen. They got away with a bit of smoke and mirrors of people not understanding where law had come from at the European level, or where it had not. Where something had been added at national level that was sitting in some dusty drawer in Whitehall and this convenient vehicle of an EU directive came along, they said, “Right, we’ll just slap into that things we’ve long thought about and no one will realise that it didn’t come from Brussels”. Well, people need to know whether it came from Brussels or not. The kind of transparency that my noble friend is seeking would be extremely useful.

--- Later in debate ---

[Baroness Bowles of Berkhamsted]

I thank noble Lords who have supported the amendment. If something is present in the National Archives, I wonder whether that means that it can then automatically be relied on in court without there being any necessity for certification or other requirements. If that was the case, it would fulfil the point that I was trying to make—there are other points that noble Lords have referenced. I did not want it to be that, in order in a court proceeding to reference a directive or draw the judge’s attention to it, one had to remember to go through the certification process, especially if there were a lot of them.

[Baroness Ludford]

My noble friend is much more an expert than I am on these technicalities, but other noble Lords as well as I have talked about more general accessibility for citizens and businesses. Someone like me knows that I can just put the number of the directive in Google and, hey presto, I get the Official Journal. However, it being in the National Archives is not as good as it being in whatever series is published under Schedule 5. If this is to be done in some voluntary capacity, why is that good enough? Why cannot it be in the Bill? It seems a very British solution: “Oh, well, it’ll be in the National Archives”. No one will be able to find it because they do not know that it is there. It might or might not be okay for the technical purposes that my noble friend is talking about, but it will not be squarely there in a series that can be made known. I cannot understand the Government’s logic.

[Baroness Bowles of Berkhamsted]

I thank my noble friend for that intervention. She also made some important points earlier about what has come into our law allegedly from directives. I must say that, since I have been looking at this withdrawal Bill, I have become astonished by what has been done under the European Communities Act, which I do not think I would have wanted if I had gone back and made the European Communities Act again—but that is a digression.

There are two outstanding points: whether you need to do anything to get it into court for technical purposes; and what the visibility is for citizens. I must say that anybody who thinks that our legislation is at all visible should go on to the government website and wander around it. If they are hoping to find out what the current law is, the first thing they will see is that the site is not up to date. I find it a far sight easier to find up-to-date European law, but again, I digress.

With the proviso that it may be necessary to return to this—possibly the Government will bring forward an amendment or provide further explanation—I beg leave to withdraw my amendment.

--- Later in debate ---

[Lord Judge (CB)]

My Lords, we come to the next stage of the slow journey of this Bill through the House. I shall look at Clause 9 again and address the issue of what the Act of proclamations provided, but just as a footnote I remind the House that the statute provided in categoric terms that a proclamation could not overrule a statute. One tends to overlook that. Everyone is absolutely riveted, are they not? Schedule 5—what an exciting topic to come to first thing in the morning. The problem, though, is that tucked away in this schedule, as frequently happens, is an issue of principle. That issue is, simply, and I support what the noble Lord, Lord Lisvane, says, that we are giving an unnecessary, or inappropriate—I do not mind which word we use for these purposes—surrender of power to the Executive. We really must break that habit.

[Baroness Ludford]

My Lords, to go slightly beyond the terms of the amendment, as foreshadowed in the words of the noble Lord, Lord Pannick, the issue of principle appears to extend to giving the Government the power not only to decide whether something is to be published but to decide whether they are satisfied that it is retained direct EU legislation. Following the debate on the amendment in the name of the noble Lord, Lord Patel, about clinical trials regulation, there have been exchanges and meetings.

Apparently, I am wrong about that. I am told that at some point I will get a blow-by-blow explanation. The Minister sighs, but no one has actually explained. There is a contradiction between the drafting in the Bill and the Explanatory Notes. The Minister is looking at me as if I am stupid. I am sorry about that, but we need to know the criteria by which the Government will precisely decide whether an EU measure is retained EU law and, preferably, have a list of those measures. That would be transparent. We need both the criteria and the list. We cannot just leave it to the Government to decide not only whether they publish but whether an instrument is retained EU law. This has massive consequences in the real world, as does the clinical trials regulation. Researchers are leaving the country because they do not know whether we are going to continue to apply EU law. This is not nothing; it is an important matter.

[Lord Cormack (Con)]

My Lords, this is very important and the noble Baroness is entirely justified in getting a little worked up about it. I spent 40 years, almost to the day, in the other place. I never had a ministerial office and I was always deeply suspicious of Ministers exercising arbitrary power and of any measure that extended the opportunity for Ministers to exercise such powers. My noble friend Lord Hailsham intervened in the debate earlier this week to remind me—not that I needed reminding—of the importance of the Back-Bencher. The Government must always be answerable to Parliament. Giving a Minister an extra arbitrary power, be it in ever such a small degree, enables them to evade answerability to the elected House.

We are fortunate to have committees—the Constitution Committee and the committee of which the noble Lords, Lord Lisvane and Lord Tyler, are members—that act as watchdogs on behalf of this House and Parliament. As this Bill leaves our House, which it will do in a month or two, and goes back to the Commons, it must have been tightened up in as many particulars as possible so as to guarantee as much power as possible to the elected House.