European Union (Future Relationship) Bill

Lord Anderson of Ipswich Excerpts

3rd reading & 2nd reading & Committee negatived & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords & Committee negatived (Hansard) & Committee negatived (Hansard): House of Lords
Wednesday 30th December 2020 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, these agreements fairly reflect the political priorities of their parties. These included, on our side, a dogmatic and substantively empty notion of sovereignty that confounds the reputation that we once enjoyed as Europe’s canny pragmatists. As a young man in the office of Commissioner Lord Cockfield, I observed the removal of precisely the red tape that now returns to constrict us, so my enthusiasm for this deal has its limits. In the security field, a particular regret is the loss of access to the immensely useful SIS II database. We must hope that dogma on the European side does not defeat the data adequacy determination on which so much else will depend. However, given the dismal alternative, I greet these agreements with relief, see much in them that is good, and will focus today on the terms of the Bill itself.

I would describe it as an essay-crisis Bill. Four increasingly expansive styles may be spotted in its hastily assembled pages. The first style, seen at the start in the treatment of criminal records, is the careful hand-threading of these agreements into existing law. On VAT fraud and social security, a more broad-brush approach is taken. Whole protocols to the agreement are simply pasted into domestic law—whether seamlessly or not, only time will tell. Thirdly, we have delegated powers. These clauses feature elements that your Lordships found exorbitant in the 2018 EU withdrawal Bill, including a power to create new criminal offences punishable by up to two years in prison, and a bootstraps power to amend the Bill itself, if “appropriate”. Henry VIII has been on the steroids again.

Finally, to cover any gaps left by even these broad provisions, we have Clause 29, which requires our judges to give effect to domestic law

“with such modifications as are required for the purposes of implementing”

the agreements. The objective is noble, but implementation often requires choices, and to impose those choices on the courts is to push them towards the forbidden ground of policy. The existing legal doctrines of direct effect and strong interpretation have inherent limits which avoid that result. Clause 29 contains no such limits. Perhaps it is an afterthought. It certainly needs knocking into shape.

This is a rushed Bill—inevitably—which I strongly regret that we are in no position to scrutinise or to improve. But, as the noble Baroness, Lady Taylor, said, our committees will scrutinise it after it becomes law. If necessary improvements are identified, I hope that we will find a way of making them.