Retained EU Law (Revocation and Reform) Bill

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

Moved by

[Baroness McIntosh of Pickering]

81: Clause 7, page 5, line 30, leave out “must” and insert “may”
Member's explanatory statement
This amendment restores discretion to the higher court.

[Baroness McIntosh of Pickering (Con)]

I thank my noble friend the Minister for the letter which we received during the course of this morning. I am slightly concerned that he did not reply to the question on the fact that the Scottish Parliament has withheld its consent, or tell us the Government’s response to that, nor to the amendments that the Scottish Parliament has laid on the table. I would be grateful if at some point that could be addressed.

In speaking to the amendments in my name in this group, I will speak also to those tabled by the noble and learned Lord, Lord Hope, which I have also signed. I would like to say a general word about Clause 7, on the role of the courts. I am grateful to the Law Society of Scotland for preparing me on the amendments that I have tabled today. This clause deals with Section 6 of the European Union (Withdrawal) Act, which dealt with the interpretation of REUL and the application of retained case law by domestic courts.

The amendments tabled to Clause 7 are quite complicated and convoluted. I would hazard to say that it is difficult to understand the effect of the amended provisions. Therefore, the amendments that I have put forward should make it clearer that, if Clause 7 simply substituted a new Section 6 of the European Union (Withdrawal) Act, the new Section 6B, which Clause 7(8) proposes to insert into the European Union (Withdrawal) Act, would provide that UK or devolved law officers could make a reference to the Supreme Court, the High Court of Justiciary or the appropriate relevant appeal court, as defined by proposed new Section 6A and the circumstances set out therein.

Even though new Section 6B(7) provides that any decision by the court to which reference is made does not affect the outcome of the proceedings, the view of the Law Society of Scotland, which I share, is that it is contrary to the interests of justice that the law officers can be empowered to make a reference in a civil case that has been concluded and where there has been either no appeal or the appeal itself has been concluded. This contravention of the principle of finality and interference by the state in civil litigation needs to be explained and justified by the Government; I urge my noble friend the Minister in summing up to take the opportunity to do so.

I understand that the innovation would apply only on a point of law on retained case law, thus diluting the unity of civil law. Further, any such power of reference would not be comparable, for instance, to the role of the Attorney-General or the Lord Advocate in criminal proceedings. Such law officers have a direct interest and an integral role to play in all such proceedings, including instituting appeals or references on points of law. Law officers do not currently have that role in civil proceedings and it remains to be seen why they should have it in respect of one particular category of civil case law. Again, I seek clarification from my noble friend.

New Section 6B(2) identifies the law officers who can make a reference. The Lord Advocate’s power to make a reference is limited to where the point of law relates to the meaning or effect of relevant Scotland legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or a matter of law on reserved matters. Again, the Law Society questions whether it is appropriate that any UK law officer other than the Advocate-General for Scotland should be able to make a reference to the High Court of Justiciary or a relevant appeal court, which is the Scottish court, on a matter of legislation. I refer to Taylor Clark Leisure plc v the Commissioners for Her Majesty’s Revenue in 2015.

New Section 6C provides that each UK law officer and devolved law officer is entitled to notice of proceedings. The Lord Advocate’s power to intervene is limited to where the argument relates to the meaning or effect of relevant Scottish legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or to the law on reserved matters. Again, I question whether it is appropriate that any UK law officer other than the Advocate-General for Scotland will be able to intervene on a matter of Scottish legislation before the High Court of Justiciary or a relevant court of appeal, which is the Scottish court. I hope the Minister will take the opportunity to clarify those points.

On Amendment 81, Clause 7(3) as currently drafted introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors when deciding whether to depart from any retained EU case law. It is the view of the Law Society of Scotland, and I share that view, that the courts must be able to exercise discretion when deciding such matters, and that a statutory obligation to consider these matters is an unjustifiable intrusion on judicial independence. I therefore hope the Minister and the Government will accept leaving out “must” and replacing it with “may” in Clause 7 in that regard.

Amendment 82 would delete new subsection (5)(a) that Clause 7 currently inserts into Section 6 of the European Union (Withdrawal) Act. Again, as currently drafted, Clause 7(3) introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors in deciding whether to depart from any retained EU case law. One of those factors is contained in new subsection (5)(a):

“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.

In the view of the Law Society of Scotland, judges are well aware that decisions of foreign courts are not, unless otherwise provided, binding. Therefore, in the society’s view, and I share that view, it is unnecessary to prescribe that the judiciary take the matter into account, and I recommend on behalf of the Law Society of Scotland that this provision be deleted from Clause 7.

Amendment 84 would delete “proper”. The reason for that is that the courts must be able to exercise discretion in deciding such matters as set out in Clause 7(3) when deciding to have regard to certain factors to depart from any retained EU case law. Creating a statutory obligation on the courts to consider how retained EU law constrains the proper development of domestic law imposes an unachievable objective on the judiciary by requiring judges to assess what the development of the law might be and to determine whether that development will be “proper”. That is essentially a matter of policy, which is the province of government rather than the judiciary.

I would like to briefly refer to the points raised in Amendments 95 to 99 in this group from the noble and learned Lord, Lord Hope of Craighead, as well as Amendment 99A, which go to the heart of the role and function of the Lord Advocate and the particular arrangement that pertains to what Scots law should be in this regard. I omitted Amendment 94, which, again, is a consequential and probing amendment seeking to delete new Section 6B. I look forward to hearing from other noble Lords who will speak to amendments in the group, but with those few remarks, I beg to move Amendment 81.

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[Baroness McIntosh of Pickering (Con)]

I have listened very carefully, and there is a fundamental flaw in my noble friend’s argument as it relates to Scotland. Scotland has a mixed legal system. I am a non-practising member of the Faculty of Advocates. I chose to go and practise EU law because every reference was either passed down to London or you could practise EU law in Brussels; there were very few opportunities to practise at the Scottish Bar. But my noble friend must accept that the Scottish system—which, I would hazard a guess, has many advantages over the English system—is based on Roman law. It is based on a system of codified law, and what distinguishes it fundamentally from what he has just described about the common-law system is that it is a mixed legal system. I wonder whether he would like to address this in his remarks, given the comments that I made in relation to the amendments that I spoke to—Amendments 81, 82, 84 and 94—and mindful of the fact that I am approaching this from a mixed civil and common-law system.

[Lord Bellamy (Con)]

I thank my noble friend Lady McIntosh for that intervention, and I stand corrected. She is completely right that Scotland is a mixed system, although I venture to suggest much influenced—if I may use that controversial word for a moment—by the common law. As I said a moment ago, Scottish judges have been, frankly, the best common lawyers anyone has ever known. They happen all to be called Reid but that is a coincidence.

Of course, I accept the comment, although I beg to differ as to whether any different conclusion follows. Essentially, the “may”, “must” and other amendments that the noble Baroness has proposed are independent of the exact legal approach one is talking about. It may well be that, in a Scottish situation, there would be a greater willingness not to disturb retained case law than in an English situation. I do not know; maybe these things will come up to the Supreme Court and someone will say “That is what we are going to do”. Maybe the Scottish tradition will prevail; that is perfectly likely. With respect, the Government do not feel that that changes the general thrust of Clause 7.

That was changes of circumstances. The next question is on this word “influence”—whether it has been influenced or determined by European law. I think “influenced” is included simply to give a sufficient degree of flexibility and to avoid deciding what might be quite a difficult point: whether European law was in fact determinative of a particular point or just part of the general context. Very often, it is part of the general context and the influence of the European element on the final outcome.

On that point—I am not sure we picked it up entirely; I may be speaking out of turn—I shall, if I may, at least attempt a reply to the noble Lord, Lord Kerr, on the question of principles of interpretation. I think it is relevant to the influence point. It arises in the context of legislation. Many here will know better than me, but the essential difference, as I understand it, is that traditional common law, including the Scottish approach, is a highly textual interpretation: what the meaning of the words is. The European Court’s general approach is a teleological interpretation of the general idea of where the statute is going. Very often, because of the laconic and sometimes completely deficient nature of European legislation, that court is much more prepared to fill in the gaps in the legislation than an English court would be. It is along those general lines; I am sure we can elaborate further as necessary later in these proceedings. So that is the influence point.

I think I have dealt with adding in the factors of settled understanding, legal certainty and so forth. The Government do not support that approach because it would simply bake in the status quo; that is the Government’s essential position. Legal certainty is inevitably something the courts will consider. They considered it in the Warner Music case because they were dealing with an international treaty and there was a desire not to disturb the law—albeit that the law was a right old muddle, as far as one can see, if I may put it colloquially just for a moment. In that case, it was not actually very seriously argued that we should depart from EU law; it was a perfunctory argument that took place in a few minutes at the end of the day, so it was a bit of a non-event.

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[Lord Bellamy (Con)]

My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.

[Baroness McIntosh of Pickering (Con)]

My Lords, it has been a lengthy and thorough debate, and I fear it has not gone quite as smoothly as my noble and learned friend the Minister would have wished. I am pleased he has conceded that Scots rule approaches this from a different angle. The noble and learned Lord, Lord Hope, has not been able to be present today, and I do not think my noble and learned friend has entirely answered the concerns of either the Royal Society of Scotland or the noble and learned Lord. In particular, my noble and learned friend has not addressed the question of why there is no corresponding restraint on the powers of any other UK law officer—for example, the England or Wales law officer—but only on the Scotland law officer. I would like to understand, perhaps at a meeting before Report, why that is the case. It is quite serious.

My noble and learned friend spoke at length about why retained EU law is historic now, but we are in a situation where court cases may arise. For example, the chemical industry here is going to be covered by the fledgling UK REACH programme, but the industry would also hope to export to the EU and so will have to meet the terms of the EU REACH programme. Does my noble and learned friend not accept that there will be cases that relate to this?

I fear that Clause 7 is an exam question seeking to show that, on appeal, there will be no reliance on retained EU law going forward. I think that was the wrong question to put, as has been adequately set out to such an extent that a distinguished former President of the Family Division, the noble and learned Baroness, Lady Butler-Sloss, said it is offensive to treat judges in this way, as did my noble friend Lord Hailsham, in slightly less graphic language.

I am grateful to the noble and learned Lord, Lord Etherton, for speaking to the amendments in the name of the noble and learned Lord, Lord Hope. I believe that work is not complete on this chapter but, with the promise of a meeting before Report, I beg leave to withdraw my amendment.

Amendment 81 withdrawn.

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We are trying to do for the Government that which they will not do for themselves: to fulfil their promises—first, those in the EU withdrawal Act 2018, and, secondly, those associated with the Brexit referendum—that Parliament would be in the driving seat. This is the great con of our times: Parliament is being written out of the picture. It is so obvious, and it is amazing that more people have not cottoned on to what is happening; namely, that this is a huge power-grab by the Government, and they really should not be allowed to get away with it.

[Baroness McIntosh of Pickering (Con)]

My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of 31 December 2028 in place of 2023, as the statutory deadline, to enable more means for the Government or any of the devolved Administrations to consult, to analyse the results of such a consultation and to prepare legislation. This would also enable Parliament or the devolved legislatures to consider and pass the legislation. By the time the Bill receives Royal Assent, there simply would not be enough time, given the parliamentary recesses in place, to conclude such an exercise. So, in my humble submission, the deadline needs to be extended to allow time for proper legislative practice to be completed.

Amendment 115—

[Lord Hamilton of Epsom (Con)]

Before my noble friend proceeds to the next amendment, she has gone on about the uncertainty created by revising this legislation, but surely the longer the period you create to consider all of that, the more uncertainty you cause.

[Baroness McIntosh of Pickering (Con)]

I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.

Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.

Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from 23 June 2026 to a similar deadline of 31 December 2028, allowing more time than permitted under the present deadline to ensure that all legislation which will be encapsulated will be covered through a consultation, and to allow time for consulting and analysing the results of such a provision. Amendments 124 and 125 are simply consequential to that.

I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the

“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”

I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.

[Baroness Meacher (CB)]

My Lords, I will follow the words of the noble Baroness, Lady Ludford. I have added my name to the question on whether Clause 10 should stand part of the Bill. As noble Lords know, my view is that the Government really have a responsibility to withdraw the entire Bill; they should take it away and have civil servants work up all the policy developments that are assumed in it. As it stands, decisions on all these policy areas will simply be left to Ministers to make through delegated legislation; that is not acceptable at all. I was strongly supported by my noble friends Lord Wilson and Lord Lisvane and many others when I made this point in an earlier debate.

Clause 10 transfers powers wholesale from the EU to Ministers, who will then decide which regulations to propose. It includes extensive amendments to Part 1 of Schedule 8 to the European Union (Withdrawal) Act 2018. In omitting sub-paragraphs (1) to (5) of paragraph 4, the Government are further reducing the power of the UK Parliament with respect to retained EU legislation, and, as the noble Baroness, Lady Ludford, said, with particular respect to retained direct EU law. The Government justify that on the basis that retained direct EU law did not have as much parliamentary scrutiny as other parts of retained EU law, but that was because the UK was bound to comply with retained direct EU law under the treaty of Rome. We are now not in the EU—we are in an entirely different situation—and the UK Parliament needs to take over responsibility for this area of law, which represents at least 50% of retained EU law.

As noble Lords know, we parliamentarians cannot amend secondary legislation. It would be extremely difficult in this context for Parliament to reject the secondary legislation involved, and therefore Parliament will have no option, in my view, but to accept the delegated powers we are talking about here. Surely this is entirely unacceptable. Ministers’ regulations across a vast range of policies will affect the entire UK population very considerably.

Clause 10 radically changes the European Union (Withdrawal) Act 2018, affecting a huge transfer of powers from Parliament to Ministers. This is in conflict with stated government policy and the Government’s Explanatory Memorandum to the Bill. Clause 10 should not stand part of the Bill.

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Moved by

[Baroness McIntosh of Pickering]

102: Clause 12, page 16, line 4, at end insert—
“(1A) Before making regulations under subsection (1) a relevant national authority must consult with any person who may be affected by the proposed regulations.(1B) If a Minister of the Crown proposes to make regulations under subsection (1) which concern devolved matters the Minister must, before making the regulations, consult with the relevant national authority.(1C) A relevant national authority and, where subsection (1B) applies, a Minister of the Crown must publish the results of any consultation conducted under this section.”Member’s explanatory statement
This amendment requires a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted that we have reached this group, which concerns restatement powers. The two most radical amendments in this group will probably capture the Committee’s imagination more than my more modest ones; I look forward to hearing from the authors of the amendments on whether Clauses 12 and 13 should stand part of the Bill.

I want to speak briefly to the amendments in my name. Amendment 102 would require

“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them.”

This would require all

“relevant national authorities … to publish the results of the consultation.”

Why is this necessary? Under Clause 12, a relevant national authority

“may by regulations restate, to any extent, any secondary retained EU law.”

Clause 14 states:

“A restatement may use words or concepts that are different from those used in the law being restated”


and

“may make any change which the relevant national authority considers appropriate for … resolving ambiguities … removing doubts or anomalies … facilitating improvement in the clarity or accessibility of the law (including by omitting anything which is legally unnecessary).”

Given the debates that we have had, this will increase the uncertainty and lack of clarity. I am grateful to the Law Society of Scotland, which proposed Amendment 102. Its purpose is that such changes, which may obviously be considerable, should require to be consulted on.

Amendment 105 would require

“a relevant national authority or a Minister of the Crown to consult with those who may be affected by regulations before making them. All relevant national authorities are required to publish the results of the consultation.”

I will not rehearse this. It is very similar under Clauses 13 and 14 to what I referred to under Amendment 102. However, as these changes would again be major, they should be consulted on, as is laid out in this amendment. I beseech my noble friend Lord Hamilton of Epsom that, if he is seeking clarity and certainty and wants a short deadline, he must share my concern that the clauses dealt with in this group will have quite the contrary effect to that which he referred to.

Amendment 107 has a similar requirement on a national authority to consult all the national authorities to publish the results of the consultation. Clause 13(8) states that:

“A relevant national authority may by regulations reproduce, to any extent, the effect that anything which was retained EU law by virtue of section 4 or 6(3) or (6) of European Union (Withdrawal) Act 2018 would have, but for sections 3 to 5 of this Act.”


Again, this is a significant regulation-making power which could affect a large number of individuals and businesses. Surely my noble friend and the Government would wish that they and the devolved Administrations consult before making such wide-ranging regulations as those envisaged in this clause. Therefore, under the terms of this amendment, a Minister of the Crown would be obliged to consult a devolved Administration before making regulations concerning devolved matters.

Amendment 108 looks to extend the statutory deadline from 23 June 2026 to 31 December 2028, a mere 18 months,

“within which a restatement of assimilated law or reproduction of sunsetted retained EU rights, powers, liabilities may be made.”

It cannot be right to have such a short deadline giving such wide-ranging powers. Therefore, in my humble submission, the deadline needs to be extended to allow sufficient time for the exercise of going through what the impact on the Government, the devolved Administrations and all the interested parties would be. A better and more realistic deadline, capable of being met, would be 31 December 2028.

Amendment 109 is purely consequential, extending the deadline from the end of 2023 to 31 December 2028. I am delighted to say that Amendment 110 would have a similar effect by leaving out Clause 14(7), which states:

“The provision that may be made by regulations under section 12 or 13 may be made by modifying any enactment.”


That is an extremely broad Henry VIII power to empower Ministers to amend any enactment. It is identified by the Secondary Legislation Scrutiny Committee in its 28th report, Losing Control?, as too broad a power. Therefore, Amendment 110 gives my noble friend and the Government the opportunity to explain why such a broad power is necessary.

I hope that my noble friend will look extremely favourably on this small but perfectly formed group of amendments. With those few remarks, I beg to move.

[Baroness Humphreys (LD)]

My Lords, I will speak to Amendments 103 and 106 in my name. My Amendment 103 is an amendment to Clause 12. It ensures that a legislative consent Motion must be passed by the relevant devolved legislature if a Minister of the Crown seeks to make regulations to restate secondary retained EU law where the provisions of those regulations fall within the legislative competence of a devolved legislature.

Amendment 106 is an amendment to Clause 13. It has the same effect as Amendment 103 but refers to the restating of secondary assimilated law, and therefore is exercisable from only 1 January 2024. Both clauses are commented on in the report from the Delegated Powers and Regulatory Reform Committee, which was concerned about the way that they “inappropriately delegate legislative power”. It recommended that they should be removed from the Bill. The committee said that both clauses gave Ministers power to legislate and achieve effects that ought instead to belong to Parliament and be achieved in subject-specific primary legislation. My noble friend Lady Ludford will speak to Clauses 12 and 13 not standing part of the Bill.

Our debate on Amendment 58 last Thursday warranted far more time and attention than we gave it. We saw there that the UK Government appear ready to take over the powers of the devolved nations when they think that they can. I was particularly grateful to the noble Lord, Lord Collins of Highbury, who is in his place, for probing powers over sunsetting and what the noble and learned Lord, Lord Thomas of Cwmgiedd, referred to as the

“equality of treatment between the various Governments of the United Kingdom.”—[Official Report, 2/3/23; col. 467.]

I am sure that we will return to this issue at a later stage of the Bill.

With the UK Government’s attitude to the devolved legislatures in mind, the Delegated Powers and Regulatory Reform Committee’s very significant sentence in the report seems pertinent:

“The powers conferred by clause 12 are open-ended, there being no requirement for consultation, for criteria to be met or for pre-conditions to be satisfied.”


The committee was of course concerned about the powers of Ministers to legislate, to achieve effects that ought instead to belong to Parliament. The powers of the Senedd are implicit in this, and the belonging should also extend to them.

I want to make a few comments about consent, the Sewel convention, and the powers of the Senedd. I was part of the first intake of Members to the Welsh Assembly, as it was then, in 1999. I have watched its powers grow as a result of the votes of the people of Wales in referenda over the years. I welcomed the introduction of the Sewel convention and its assertion that the UK Government would not normally legislate in devolved areas without consent, to protect and defend the powers of Welsh Ministers and the Senedd itself. That welcome was tempered by a concern shared by many others about the definition of “normally”. Our concerns have been justified. Despite assurances from Ministers during the progress of the Bill, recent history has shown that reality is completely different. Over the last three years or so we have been faced with an increasing disregard for the powers of the devolved legislatures, and an attitude which borders on contempt for the legislative consent Motions.

It is now accepted that the Sewel convention is no longer working. Sadly, its operation is seen as the biggest constitutional issue facing Wales. The First Minister has called for the re-establishment of the way in which the convention was respected from 1999 to 2019 and has supported the intergovernmental agreement that will lead to “some work” being done on how the Sewel convention could be strengthened. As he said in his recent appearance before the Commons Welsh Affairs Committee,

“if you cannot repair the Sewel convention, then one of the major underpinning props of the devolution settlement has simply been kicked from under it.”