European Union (Withdrawal Agreement) Bill

Baroness Taylor of Bolton Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 13th January 2020 Lords Chamber

[Baroness Taylor of Bolton (Lab)]

My Lords, many of us are not happy with where we are in this Brexit saga. I for one wish that the Commons had accepted the amendment on the customs union that was so narrowly defeated. However, all of that is water under the bridge, as others have said. What we must do now is try to ensure that all the legislation related to Brexit is fit for purpose. Indeed, that has been the objective of the Constitution Committee, which I have the pleasure of chairing, since this whole process began. The Constitution Committee met today and agreed a report on this Bill, which we hope will be published tomorrow before Committee. Tomorrow’s report will be our fifth on the legislation required for withdrawal from the EU. I hope that it will assist the House with consideration of amendments. I have to disagree with the noble Lords, Lord Cormack and Lord Forsyth, because I think we have a responsibility to make sure that this Bill is fit for purpose.

In the past, the Constitution Committee has spent a great deal of time scrutinising legislation concerned with Brexit. Our first report anticipated the issues that would arise and, since then, we have looked in very great detail at the issues involved. Our report on what became the European Union (Withdrawal) Act 2018 concluded that that legislation, at that stage, was simply not fit for purpose. Our report was used very widely in the debates in this House on the relevant amendments. We talked about how UK courts should treat the case law of the Court of Justice of the European Union and particularly mentioned the difficulties of defining the status of retained EU law. We also talked at great length and in great detail, when the noble and learned Lord, Lord Judge, was there, about imposing greater requirements on Ministers to justify and explain their use of regulation-making powers.

In consideration of what became that Act, we were never trying to stop or block Brexit. We were seeking to improve the legislation so that it could do what it said it would do in a way which was constitutionally proper. Indeed, at the end of that process, the Government acknowledged that much of what the committee had recommended had been necessary and that changes had to be made. The noble and learned Lord, Lord Keen, was there and may remember saying that he was grateful for the constructive and expert way in which the committee had conducted itself.

We wanted to continue in that vein and continue looking at and being constructively critical of the Bill had we had sufficient time. We asked the Government if we could see an early draft of the Bill in confidence, so that we could carry out our work. That did not happen and we are now faced with this House considering a Bill of intense constitutional significance in a very short time. It is clear that the Government’s intention is to push this Bill through, paying lip service to meaningful scrutiny. Again, I am sorry that the noble Lord, Lord Cormack, disagreed with me on this.

The Constitution Committee has frequently warned, as have others, of the dangers of fast tracking legislation, especially important legislation, which can lead to bad law. The Committee did not have the time to go through this Bill in the detail that it had considered others, but I hope that our report will be of assistance to the House.

There are of course, as we have heard, some policy issues of great significance, in particular that which my noble friend Lord Dubs raised about child refugees, but the Constitution Committee’s report is restricted to constitutional issues. We will be encouraging the House to look at issues such as Clause 26, which has already been mentioned, because it is just not right. If the meaning of UK law, as retained EU law will become after exit day, is to be altered then it is this Parliament that should make the changes and not the ministerial guidance—a factor that is proposed at the moment.

There are many issues of concern such as Henry VIII powers, the responsibilities of the devolved assemblies and so on. However, the basic problem that this House faces is that we have a real challenge in making sure that the Bill is as it should be. I am afraid that I agree with the noble Lord, Lord Kerr: we have to do our job. We have to scrutinise the Bill carefully and I hope that the report of the Constitution Committee will be of assistance to the House.

European Union (Withdrawal Agreement) Bill

Baroness Taylor of Bolton Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I declare an interest as a litigator over 30 years of European law issues for whom these paragraphs and the legal uncertainty they unleash bring the prospect of endless work and riches as yet undreamed of. None the less, I put my name to the amendments, which of course will do nothing to obstruct or delay the Brexit that will occur on 31 January.

At Second Reading, I described another clause of the Bill as “Henry VIII on steroids”, but even that description is hardly strong enough for new subsection (5A)(b). That would allow the Minister, by regulations, to decide the extent to which, and the circumstances in which, our courts are to consider themselves bound by the law of the land, whether in the form of retained EU case law or retained domestic case law that relates to it. If Parliament is asked to change retained EU law, we will debate it and no doubt find a way to do it. Taking back control of our laws is one of the principal points of Brexit and, for my part, I hope to play a constructive role in that process. But to stand by and see these law-changing powers given to Ministers is quite another matter.

European law, no less than our own, is contained to a significant extent in the judgments and interpretations of the courts—what in the domestic context we refer to as principles of common law. If Ministers were free to remove the binding force of principles that they did not like, they could selectively neuter the protections given by law to workers, consumers, disadvantaged groups and the environment. Such a power in the Executive to interfere with the law declared by the courts, including the courts of this country, has no precedent that I know of. It would also cause uncertainty with effect from now, because no one can predict which parts of retained EU law will be changed over the year ahead or how the structure of what remains will react when a load-bearing element is removed.

Alarming in a different way is new subsection (5A)(c), on which the noble Lord, Lord Beith, began his remarks. Courts could be licensed under this provision to make their own departures from retained EU case law on conditions that Ministers could specify. As Sir Bob Neill explained in the Commons, that is a recipe for uncertainty, confusion and opportunistic litigation on a grand scale.

The Minister will, I anticipate, encourage us not to worry, because senior judges must be consulted. But consultation means only that. The Government have the whip hand. The complex ramifications will not be exposed by argument as they would be in court and, if deference to the judges’ views could ever have been assumed, it certainly could not be now. I suggest that there would be situations in which the judges will not even feel able to offer an opinion.

Imagine the scene. The Minister summons the judges and informs them of his proposal to instruct them that in accordance with the clear will of the people—or at any rate of the Government—they are no longer to be bound by the settled interpretation of the precautionary principle in environmental cases or the principle of indirect discrimination in employment law. The judges would no doubt come back with such comments as might occur to them on the timing, the procedural implications and so on. But since such instructions would be lawfully issued, if this clause passes into the Bill, and would implement clear government policy, these serving judges could not pass substantive comment without being dragged into the policy sphere, which, contrary to the views of some, they are extremely anxious to avoid.

Secondly, the Minister will point out, quite correctly, that the power in question will sunset when the transition period ends. However, it is the power to make regulations that will sunset, not the application of those regulations after the transition period. So that reassurance is illusory.

Thirdly, perhaps the noble and learned Lord, Lord Keen, who is as shrewd as he is principled, will tacitly accept the overbreadth of these provisions but hint at their restrained future use. In that case, I would invite him to come back with a version consistent with those restraints. We are reasonable people and if his only concern is a possible bottleneck in the Supreme Court other solutions could be devised and have indeed been suggested to him.

To leave this extraordinary clause unamended would be, I suggest, a dereliction of duty. I hope that amendment will come from the Government. However, when the time comes and in the last resort, as the noble Lord, Lord Butler, said on Monday,

“we should not be intimidated from fulfilling our constitutional role of scrutiny and amendment”.—[Official Report, 13/1/20; col. 490.]

That is particularly so, I would add, on an issue that was not put to vote in the Commons, that has been the subject of strong comment from the Constitution Committee, that in no way jeopardises Brexit but that threatens the independence and good order of the courts.

[Baroness Taylor of Bolton (Lab)]

My Lords, members of the Constitution Committee are very concerned about this suggestion in the legislation. The case was outlined by the noble Lord, Lord Beith, who went into some detail, so I do not wish to repeat all that. I simply want to ask the Minister, first, whether it is the Government’s intention to use this new subsection (5A)(b), and, secondly, if they will not use it, why it is in the Bill. If they intend to use this provision, can the Minister please give us some examples of where that might be?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, this Government are not dogmatic—the noble Lord is quite wrong about that. Let us be clear: there is a starting point. If I can refer the noble Lord back to Section 6(5) of the 2018 Act, he will see that the starting point is already enacted. However, we want to find a way forward that is more effective and appropriate, and that is the purpose of the consultation process that is allowed for in the clause.

[Baroness Taylor of Bolton]

Will the Minister answer the point raised about the policy areas the Government have in mind where they could use these powers?

European Union (Withdrawal Agreement) Bill

Baroness Taylor of Bolton Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Beith]

The consequence of my amendment, if it was carried, would be that the amendment in the name of the noble and learned, Lord, Lord Mackay, could not then be taken, because the words upon which it bites would have been removed. I would be content to divide on my amendment, to test the opinion of the House.

[Baroness Taylor of Bolton (Lab)]

My Lords, it would be possible for the Government to bring back something along the lines suggested by the noble and learned Lord, Lord Mackay, should this amendment be carried. It would be foolish not to allow the House to make a clear decision about what it thinks on Clause 26(1)(b). As has been said, time and again, this is a serious and constitutionally significant move. It would, therefore, be wise to test the opinion of the House.