European Union (Withdrawal) Bill

Baroness Taylor of Bolton Excerpts

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

[Lord Beith (LD)]

My Lords, I speak as a member of the Constitution Committee to make it clear that the committee would say that the noble Lord, Lord Pannick, has spoken very lucidly for it in setting out the amendment. We are talking about provisions in Acts of Parliament—the Equality Act is one example—that implement EU obligations and would not be repealed by withdrawal or by the repeal of the European Communities Act. Yet Clause 2 opens up to the process of repeal and modification by statutory instrument provisions in UK statutes and in the legislation of the Scottish and Welsh Parliaments. These are provisions in law that are not nullified or made inoperative by the act of withdrawal; they would stay on the statute book. Of course, the legislation may contain features that do not of necessity arise from the requirements of EU directives or other EU obligations. We talk much about British gold-plating of EU measures. We will probably find in a number of measures which this clause would draw in features which were clearly not within the scope of the requirement placed on us by our membership of the European Union. The committee concluded:

“The effect is to inflate the range of domestic law—including primary legislation—in relation to which the ministerial “correction” powers … can be exercised”.


These are powers the extent and scope of which are extremely worrying to the committee.

As the noble Lord, Lord Pannick, said, the Bingham Centre has produced a helpful analysis of many of the things that the committee was concerned about. In almost all cases, it agrees with the committee’s analysis, but, in some, it does not agree with the committee’s proposed remedies. In this case, it suggests that if we go down the route proposed by Amendment 15, there should be an amendment to Clause 6 to make it clear that provisions in EU case law should be taken into account when interpreting EU-derived law which is already on the statute book. The logic is that it is far better that the law is in only one place rather than in two, but we would not want by that means to take away from the court the opportunity to take into account EU-derived case law prior to our withdrawal from the EU, if it ever happens.

The committee is on to an important point. I hope that we can explore as a result of this short debate ways of dealing with it.

[Baroness Taylor of Bolton (Lab)]

My Lords, while I do not want this section of the debate to be dominated by members of the Constitution Committee, I should congratulate my noble friend Lord Pannick on the way he presented the amendment despite it certainly not being in the interest of the legal profession—if we manage to get legal certainty in the Bill, the lawyers will not have their field day. However, I fear that, unless we achieve legal certainty and the clarity that my noble friend mentioned, we will be in real difficulty. Our committee has put forward suggestions, but we do not think that they are the only ways forward. It is important at this stage that the Government recognise the extent of the problem and the damage that will be done if we do not have some amendment and some concessions from them in this area. It is of course an area linked to the other parts of the Bill, because, unless we make changes here, the powers that the Government will have under Clause 7 will be completely unacceptable because of the breadth of legislation there captured.

I therefore urge the Minister to reflect carefully not only on the suggestions of the Constitution Committee but on those of others outside, because this problem will dog the Bill for ever if we do not make some changes here.

[Lord Mackay of Clashfern (Con)]

I support the idea that we should get legal certainty in the Bill, and if that damages the interest of the legal profession, it is damage in the public interest.

However, I venture to suggest that it may be wise to leave this provision pretty much as it is. That is because quite a lot of legislation was passed in the light of obligations imposed by the European Union, but we proposed our own legislation to deal with it. As the noble Lord, Lord Pannick, excellently illustrated, that legislation is exemplified by the Equality Act. I read this clause as referring only to the part of the enactment,

“so far as … passed or made, or operating, for a purpose mentioned in section 2(2)(a) or (b) of that Act”.

As the noble Lord, Lord Pannick, said, “enactment” sometimes suggests a whole Act, but this provision restricts it to the part of the enactment that deals with this point.

As the noble Lord, Lord Beith, said, it is quite likely that some of these measures are gold-plated—there used to be quite a lot of suggestions from various quarters that we went in for gold-plating. When I was in a sense responsible for some of these matters, I discovered that the gold-plating was more a result of some antagonism to the Bill in question than it was gold-plating in the sense of going beyond what the European Union required. So far as there is gold-plating of that sort—that is, unnecessary as far as the European Union is concerned—I do not think that this clause would strike it, because it is “so far as” the thing is made in view of the provisions “in section 2(2)(a) or (b)” and so on of the Act. Of course, as has been pointed out, it is perfectly likely that in some of these provisions that were introduced in that way adjustment will be required because we are leaving the European Union.

Some provisions—I have not looked too closely at how many but I imagine there might be quite a few—of these ordinary Acts of Parliament will have a connection with the European Union that may be affected by our leaving it. Therefore it is important that in that situation a power to deal with that matter in a reasonable time would be required, and we will be looking at these later. Therefore, I am inclined to think it may be better to leave this provision as it is. I am very interested to hear what my noble and learned friend the Minister has to say about that.

As for the supremacy principle, I will have something to say about that if I happen to be present when it arises. I said at Second Reading and I say again that I think the Constitution Committee has produced a superb solution to that problem, which enables us to forget for ever the supremacy of European law over our law.

--- Later in debate ---

[Lord Keen of Elie]

Professor Craig addresses a potential categorisation of EU-derived legislation by reference to its origins within EU law, so there is pre-Lisbon treaty and post-Lisbon treaty analysis based on the articles of the pre-Lisbon provisions and of TFEU post Lisbon in 2009. I shall not elaborate on it at this stage as it does not arise in the context of this group. With respect to the noble Lord, I simply want to reassure him that we understand that there is a debate about how we should categorise EU-derived legislation.

The second point I shall mention at the outset is the reference to the principle of supremacy. That turns on Clause 5(2), which ensures that the principle of supremacy—it currently has effect through the ECA—will continue to apply but only for the purpose of resolving conflicts which arise between EU law which is converted by the Bill into domestic law and pre-exit domestic law.

Again, we have to be clear what the purpose of that is. I acknowledge in passing that the Constitution Committee proposed a different way of addressing Clause 5, which on one view might be considered neat, in so far as it involves applying the principle of supremacy without using the word “supremacy”. We will come on to debate that in due course, as the noble Lord, Lord Pannick, observed, and I will not take time up with that at this stage.

I turn to Amendment 15. Clause 2 has been drawn broadly deliberately. As has been noted, it will preserve any domestic regulations made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the ECA 1972. But it also includes within its ambit any other domestic primary or secondary legislation which implements, or enables the implementation of, EU obligations and any related domestic legislation. In response to the inquiry from the noble Lord, Lord Pannick, I make the point that enactments often contain provisions derived from EU legislation—we have to remember that what we are referring to in Clause 2 is EU-derived domestic legislation. It is those parts of Acts such as the Equality Act or the Health and Safety at Work etc. Act that are EU derived which are to be brought within the ambit of retained EU law. It is necessary to read two elements: EU-derived domestic legislation—those parts of legislation that come from the EU—and retained EU law. They are linked.

[Baroness Taylor of Bolton]

I think I am following what the Minister is saying, but a moment ago he used the phrase “legislation which … enables” implementation. How much of what is “enabling” will be caught in this?

[Lord Keen of Elie]

It is only that part of the legislation which is derived from the EU which is then brought in and forms part of retained EU law. As a hypothetical example, let us suppose that there are 20 clauses in some piece of health and safety at work legislation, of which 10 are derived from EU legislation. That forms part of EU-derived legislation for the purposes of this Bill, and will come into retained EU law. But the other parts are not EU-derived legislation and will not form part of EU retained law.

[Baroness Taylor of Bolton]

I accept that, but the Minister is assuming that legislation is always very neatly compartmentalised in a way which would allow that. My fear is that there will be enabling parts of legislation that could be caught up because some subsection could be EU related.

[Baroness Ludford (LD)]

Could I just follow on from that by expressing a related concern? We know what the Government’s attitude is to the Charter of Fundamental Rights and we know that the Bill provides that there is no right of action on the basis of general principles of EU law. I am thinking aloud here, but the concern might be that even with only a strict and narrow interpretation of which bits of, say, the Equality Act are EU derived and therefore subject to all the consequences, including Clause 6, we might miss some of the context in which those narrow provisions should be interpreted if we were to remain in the EU and fully under the jurisdiction of the court.