European Union (Withdrawal) Bill

Lord Adonis Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Mackay of Clashfern]

I indicated at Second Reading that I would support the propositions that the noble Lord, Lord Pannick, has enunciated on behalf of the Constitution Committee. Bringing into our system legislation from an alien system and doing so reasonably consistently require it to have an allocated status of some kind. Making it primary legislation is probably the best. Otherwise, there will be doubt about precisely which item of legislation goes to a particular area. The result will be to make it possible to dispense with the rather outmoded idea of the supremacy of EU law once Brexit comes along by the date which allows our ordinary system to operate.

I have tremendous respect for the Bingham system and, as your Lordships know, for the noble and learned Lord whose name it carried. It has kept up the traditions and quality of his work wonderfully—I should perhaps in passing declare an interest: I find it very useful to support the Bingham institute in connection with its funding. However, it makes quite a lot of the difficulty of using Henry VIII clauses. This is a very special situation, as the Constitution Committee recognised some time ago, because trying to fit together two systems of legislation is certainly difficult. We must remember the timescale involved in trying to do it any other way. I shall not comment on the detail of the powers to amend proposed in the Bill—that is for a later stage—but it is reasonable at the moment to accept that this is a very special situation with a necessary operation which requires to be performed in reasonably short time to make the whole thing work. Therefore, the idea that we are dividing primary legislation by this method is open to doubt.

[Lord Adonis (Lab)]

My Lords, when we last debated this issue, the Advocate-General for Scotland said that he was very attracted to the proposals published by Professor Paul Craig in his blog—the noble Lord, Lord Pannick, referred to that. I notice that Professor Craig published a subsequent blog on 26 February, also referred to by the noble Lord, in which he suggests that, once the process of transposing law has taken effect, we should assign,

“legal status to EU retained law in the UK based on the status it had in EU law”

Having read his blog as a non-lawyer, I felt that, if the intention is to give certainty, the proposals of Professor Craig would do that—except in one key respect which I hope the Minister might comment on: what process would be undergone between now and next February to allocate the huge body of retained law to one or other category if we were to adopt Professor Craig’s mode of proceeding? Since the Solicitor-General said in the House of Commons that about 20,000 pieces of EU law will be transferred, and if it were possible to establish, as Professor Craig sets out, a criterion based on the intention of existing EU law which would divide between primary and secondary legislation, can the Minister indicate, if he is minded to go down that route, what process would take place, so that, on 29 March next year, we know the status of law being transposed?

[Lord Keen of Elie]

My Lords—