European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Pickering and Lord Mackay of Clashfern

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

[Lord Mackay of Clashfern]

My Lords, it is fairly clear that this Bill already has enough to do in trying to deal with the situation of withdrawal, and it cannot be right that it should take account of any transition period or implementation period, whatever you like to call it, until we know a good deal more about it than I do at the moment. That ignorance is possibly shared to some extent by other noble Lords.

On this point, the true position is that once a directive has been adopted by the European Union with a period for implementation by a member state, the obligation on that member state is to bring it into law in its own domestic arrangements within the period stated. The directive therefore does not become part of the domestic law of that member state until its implementation before or by that date. This Bill is intended to deal with the state of the law on the day of our withdrawal and therefore strictly speaking such directives, however desirable they may be, are not really part of our domestic law any more than an Act which has been passed but not commenced is part of our domestic law. I have a fair amount of experience of that happening.

The situation is clear so far as what this Bill should do, but so far as what my noble friend Lord Deben wants, that is another matter. It is perfectly reasonable that the Government should have a policy on that if they want it.

[Baroness McIntosh of Pickering]

Is my noble and learned friend saying that the United Kingdom Government should absent themselves from all legislation and all the directives that are being discussed, whether it is the EU circular waste package or the water framework directive? I believe that the noble Lord, Lord Wigley, referred to 23 directives—I am most familiar with the environmental ones—which fall into the very narrow category where there is every expectation that the UK Government are prepared to sign up to the commitments. However, because the Prime Minister has set an arbitrary date for us to leave, we will not be in a position to implement them. Is it the case that even if we agree them in March 2019 and it is the wish of the Government to implement them, because of the arbitrary date, we will not be in a position to transpose them?

[Lord Mackay of Clashfern]

The problem about the arbitrary date is that it is rather an important one because it is when we will cease to be liable to obligations under EU law unless they are made part of our law by this Bill. The problem is that a directive which has been adopted but not yet put into effect, but with the obligation to put it into effect still running, could in some cases last for as long as two years. That would greatly alter the clarity of the Bill in the meantime. If the Government want to implement one of them there is absolutely no reason why they should not. They will have plenty of legislative power and so long as they can get parliamentary time they can do so. That is a matter of policy that my noble friend has referred to. It is a perfectly reasonable way of dealing with this sort of point.