European Union (Withdrawal) Bill

Lord Beith Excerpts

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

[Baroness Brown of Cambridge (CB)]

My Lords, I support Amendment 28, tabled in the name of my noble friend Lord Krebs and the noble Baroness, Lady Jones of Whitchurch, and to which I have also added my name. My noble friend Lord Krebs has already described very eloquently the purpose of the amendment. During Committee in the other place, the then Minister of State for Courts and Justice described this clause in nice, simple, visual terms. I found them slightly easier than all the legal language that we have been dealing with. He called it a sort of broom: a sweeper provision that,

“picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act”.—[Official Report, Commons, 15/11/17; col. 498.]

Such a broom seems a jolly useful idea, but as it stands it is missing a few bristles.

My noble friend Lord Krebs mentioned the air quality directive. I believe that Clause 4, as it stands, could fail to sweep into UK law the requirement on the Government to review and adjust the airborne particulate PM2.5 targets in line with scientific information from the World Health Organization. The current clause could also fail to sweep, as he mentioned, details such as the aims and purposes of directives. For example, the environmental liability directive includes the really important principle of “the polluter pays”. I am not quite sure whether I am addressing the noble Baroness the Minister or the noble and learned Lord the Minister, but I would ask one of them to please let us have a broom with denser bristles.

[Lord Beith (LD)]

My Lords, Clause 4 contains many ambiguities, some of which have been helpfully pointed out by the noble Lord, Lord Krebs, and the noble Baroness, Lady Brown. The clause domesticates all directly effective treaty provisions whether or not they will be capable of meaningful application following exit. Several problems arise from that which the Government are aware of and say they will address. However, I am not entirely comfortable with the sort of formula the helpful Solicitor-General brought to the committee when he came to see us. He said:

“‘The Government will consider how these rights can be given effect to in the context of our exit from the EU on a case-by-case basis ahead of exit day’”.


There is an awful lot of work to be done before exit day and I look forward to receiving this case-by-case analysis at some point.

The Constitution Committee suggested amendments to deal with some of the ambiguities, but it could not deal with all of them for the reason we set out in paragraph 37. Reciprocal rights are,

“inextricably linked to the legal relationship between the UK and the EU post-exit. The full impact of Brexit upon reciprocal rights will not be known until the UK’s future relationship with the EU is determined. This highlights a broader issue that the uncertain environment in which the Bill is being considered makes it difficult fully to assess its likely consequences, including its constitutional implications, at the time of its passage”.

That is putting it gently, but that is the difficult situation in which we are operating.

I turn specifically to the effect of Amendment 26. I remain puzzled by not just the ambiguity but the conflicting language used in the clause. The noble Lord, Lord Pannick, elucidated this at the start of this short debate by citing the phrase,

“not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”.

The committee responded by saying:

“It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect, or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered”.


That is a pretty hypothetical basis on which to defend a right. We said:

“The language of clause 4 supports the latter interpretation, but the explanatory notes appear to endorse the former”.


A great deal of paper is being shuffled around at the moment because it may be that the ambiguity is being resolved as I speak, although I suspect that what is really being looked at is how far we can get tonight in the course of these proceedings. However, we need some help in getting the Government’s view on this, but that might not be sufficient because we also need to ensure that the Bill is tightened up in this respect.

[The Duke of Montrose (Con)]

My Lords, we have spent a lot of time today trying to define what is a snapshot and what could give clarity in the transposition of the legislation. We are now poking around as to where the fuzzy edges are, and some of this is very much more than just fuzzy edges. In fact, it is very good that the noble Lord, Lord Krebs, outlined areas that this measure would solidify and imply. My worry about Amendment 28 concerns subsection (3), which deals with law that,

“incorrectly or incompletely gives effect”.

It is hard to say what that will apply to. It is obviously drawn up that way because we do not know what it will apply to. In some ways, it seems we are now trying to include laws in the snapshot when we do not know what they are or what they might be.

My main gripe is that the amendment says that,

“a Minister of the Crown must make regulations for the purpose”.

This is one of the things for which we might say that a Minister of the Crown “may” make regulations, because we wish to leave some power to the UK Government to intervene to construct the type of law we would like to see.

--- Later in debate ---

[Baroness Goldie]

My Lords, this will be brief, because my soulmate and prop has deserted me. With this amendment, the noble Lord, Lord Pannick, has raised what he sees as the potential conflict between the EU law retained under Clause 4 and the domestic legislation preserved under Clause 2. His amendment seeks to ensure that rights, powers, obligations et cetera provided for in EU directives which have been implemented into EU-derived domestic law—and therefore are already subject to an enactment—will not need to have their directly effective provisions domesticated through Clause 4.

The Government consider this amendment unnecessary. To the extent that there is any potential overlap between Clause 4 and Clause 2, this is no different from the situation at present in relation to EU law and how we see it given effect in UK law. A judgment may establish direct effect, and domestic legislation to implement that finding may follow. But this does not cause any practical difficulties now—indeed one process complements the other—so we simply do not agree that there will be practical difficulties under this Bill as phrased.

I am of course grateful for the suggestion made by the noble Lord, Lord Pannick, but the Bill’s position is clear and consistent with existing practice, and his amendment is unnecessary. In these circumstances, I ask him to withdraw it.

[Lord Beith]

The noble Baroness is bringing out an explanation which the committee has already considered and was not satisfied by. As the noble Lord, Lord Pannick, explained, there is a remaining ambiguity. Can I suggest to her that she composes a note to her very good friend, the noble and learned Lord, Lord Keen of Elie, saying she was given a very difficult time over this and that the Government really have to look at it again? If she is agreeable to doing that, we will not spend much time making a fuss about it.

[Baroness Goldie]

I thank the noble Lord very much indeed. I am sure my noble and learned friend Lord Keen does not even need the note. He will know that I have had a very difficult time.