European Union (Withdrawal Agreement) Bill

Lord Anderson of Ipswich Excerpts

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

[Lord Anderson of Ipswich (CB)]

My Lords, I will concentrate on the practical effects of this Bill for the sovereignty of Parliament. That principle is recognised in Clause 38 in rather defensive terms. It is said to “subsist notwithstanding” the mass of

“directly applicable or directly effective EU law”

that, by virtue of earlier clauses in the Bill, will continue to bind us during the transitional period. Yet Clause 38 misstates the threat. Parliamentary sovereignty is not endangered by a short and prudent continuation of the arrangements by which sovereignty was pooled in the interests of international influence—arrangements which Parliament itself endorsed in the European Communities Act 1972 and on many subsequent occasions. It is other features of the Bill, not referred to in Clause 38, that threaten the ability of Parliament to perform its proper role. I will refer to two in particular.

First, this version of the Bill sees the removal of parliamentary oversight of the negotiating mandate, the negotiations and the future relationship deal. Parliament will have a say only at the stage of ratification, by which time it will be up against a rapidly expiring deadline that will be extendable only if the Government so wish. This might have been fine when trade deals were about nothing more than tariffs and quotas, but the revised political declaration aspires to

“an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced Free Trade Agreement at its core, law enforcement and criminal justice, foreign policy, security and defence and wider areas of cooperation.”

In the previous version of the Bill, a minority Government offered Parliament a voice on how that goal is approached and how far it is achieved—a necessary voice, since not a person in this country will be unaffected by the future relationship, or by the failure to achieve it. Despite their large majority, this Government have chosen to cut Parliament out—a display of their power, but a dismissal of the consent on which that power ultimately depends.

Parliament is sidelined secondly by the inadequate controls on the numerous delegated powers for which the Bill provides. Some are constrained by the terms of the withdrawal agreement—as the Minister said in opening—but others are not. In the context of Northern Ireland, Clause 21 would allow even this Act to be amended by Ministers, without limitation as to purpose and without the usual exceptions for taxation, new criminal offences and so on. This is Henry VIII on steroids.

Statutory instruments made over the last 18 months have been associated by the Hansard Society and the Public Law Project with a worryingly large number of errors and procedural irregularities. These problematic results are described in an article of 9 January on the UK CLA blog. Effective parliamentary control of this regulation-making power requires greater use of the affirmative procedure and a sifting process of the type provided for in Schedule 7 to the 2018 Act, for the reasons so persuasively given by the Delegated Powers and Regulatory Reform Committee in its recent report.

Clause 26, which has been mentioned, presents concerns of a particular kind. Yes, we have decided to take back control of our laws, but this clause is so broad as to suggest that no one has quite decided how to do it, and that all options—including, frankly, some alarming ones—are to be left on the table. Sir Bob Neill, in the other place on 8 January, spelled out the possible consequences of this clause for legal certainty, certainty of policy and the system of binding precedent. Like him, and the noble Lord, Lord Pannick, whose amendment I have signed, I am troubled by a provision that allows Parliament to be bypassed and Ministers trusted with a power that was previously thought appropriate only for the Supreme Court.

Revolutions are said to devour their own children. The original proponents of Brexit, who rode out under the banner of “Our Parliament and Our Courts”, sometimes seem to have little faith in either. But constructive scrutiny, received in a constructive spirit, makes for stronger and more accountable government. I hope that all parts of the House, when looking at this Bill, will not lose sight of that.

European Union (Withdrawal Agreement) Bill

Lord Anderson of Ipswich Excerpts

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

I hope that the noble and learned Lord can give us a much clearer indication of what the Government are seeking to achieve and why they are doing it by regulation rather than including it in the Bill. I hope that we will hear a very full response from him. I beg to move.

[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?