European Union (Withdrawal) Bill

Lord Beith Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Keen of Elie]

The Government’s objective is to conclude a withdrawal agreement by October of this year. That has been stated on a number of occasions and it is in that context that we intend that the present Bill should deal with the situation, whether or not there is a withdrawal agreement or an implementation period. As and when a withdrawal agreement is concluded, it will be dealt with in the withdrawal agreement and implementation Bill. Clearly, if we enter into an international treaty with the EU 27 in respect of these matters, we will respect that international treaty and our obligations inherent in it and, in accordance with the duality principle, draw down those obligations into our domestic law, using the withdrawal agreement and implementation Bill. I suggest that it is inconceivable that we would not seek to do that.

[Lord Beith]

The noble and learned Lord has been quite clear that it will be the withdrawal Bill that is the mechanism. Is he saying that it will be that Bill and not the use of the statutory instrument powers to be found elsewhere in this Bill which will enable him to modify or repeal its sections when it is an Act?

[Lord Keen of Elie]

We have been clear that the withdrawal agreement and implementation Bill will legislate for the withdrawal agreement. That may involve us amending the terms of the present Bill, but we should remember that the present Bill is intended to accommodate the situations where there is a withdrawal agreement and where there is no withdrawal agreement and therefore no implementation period. It is to bring certainty to the statute book in that context. Clearly, there may be a situation in which we have to bring forward amendments to the present Bill in the second withdrawal agreement Bill. I recognise that.

--- Later in debate ---

[Lord Pannick]

My Lords, this amendment is in my name and those of three other members of your Lordships’ Constitution Committee: the noble Lords, Lord Norton of Louth and Lord Beith, and the noble Baroness, Lady Taylor of Bolton.

Amendment 358C and Amendment 360A, with which it is grouped, address the powers tucked away in Schedule 8 to modify retained direct EU legislation by the use of delegated powers that relate to subordinate legislation. A power to modify is an important matter because “modify” includes a power to repeal—see Clause 14 (1).

This Committee has debated on previous days the surprising omission from the Bill of any provision that identifies the legal status of retained EU law. Is it primary legislation, secondary legislation or something else? The powers in Schedule 8, in paragraphs 3(1) and 5(1), which we are now addressing, have attracted the attention of your Lordships’ Constitution Committee because those provisions treat retained EU law as analogous to secondary legislation for the purposes of powers to modify. That is a surprising position for the Bill to adopt, certainly in relation to that part of retained EU law which confers important rights: for example, in the fields of employment, the environment and consumer protection. It means that, in addition to the other powers to modify retained EU law, which the Bill will confer and which we have debated in detail—Clauses 7, 8, 9 and 17—there is yet another set of powers recognised by Schedule 8 that will give Ministers the power to modify the retained EU law, on important subjects, which is brought into domestic law.

My concern is not reduced by paragraph 3(1) of Schedule 8 saying that these powers can be used only,

“so far as the context permits or requires”,

and paragraph 5(1) says that the powers may be used,

“unless the contrary intention appears”.

These statements are opaque in the extreme and certainly do not provide any degree of legal certainty.

I therefore look forward to hearing from the Minister why these powers are needed at all in addition to the other extensive powers which the Bill confers, and I look forward to hearing from him what these powers say, if anything, about the legal status of retained EU law. I beg to move.

[Lord Beith (LD)]

My Lords, I am glad to be associated with the noble Lord, Lord Pannick, in supporting this amendment to seek some clarity. I will simply add two further points, having said that this distinctly lacks clarity at the moment.

First, I draw attention to paragraph 3, which says:

“Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction”.


A little gloss on that from the Minister would be helpful. The second thing that needs clarifying is the impact on the devolution aspects of the Bill. The Government’s Explanatory Notes say that,

“in relation to the devolved administrations these pre-existing powers”—

that is, the powers that can be used under the clause we are discussing—

“are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence”.

I imagine that the noble and learned Lord, Lord Hope, pricked up his ears at that phrase, because it goes to the heart of the argument we have been having about the impact of the Bill on devolution and the idea that powers will be released to the devolved Administrations only once the UK Government are satisfied with the way they will deal with the framework provisions. The appearance of the phrase,

“until the relevant subject matters are released from the interim limit on their competence”,

in the Explanatory Notes is quite worrying. The provisions are of course there because some of the provisions here relate to existing devolved powers. The devolved Administrations must have the capacity to take this kind of action if the UK Government have the capacity to do so. However, it is subject to this rather extraordinary restriction: the Government hold on to the powers until they are satisfied that they can be released. For the benefit of clarity, I hope that the Minister can help us.

[Lord Goldsmith]

My Lords, I support the amendment. There is not much to add to what the noble Lord, Lord Pannick, said about what the amendment does and why it is necessary, nor to add to the questions he asked or to those then added by the noble Lord, Lord Beith, which in particular picked up issues with regard to the devolved Administrations.

We know that a major theme in your Lordships’ House, rightly, has been how powers are to be exercised, recognising that there may be circumstances in which they have to be exercised. Notwithstanding that, on the whole this Committee has rightly taken the view—or we hope that we will see it take the view, certainly from the interventions and contributions that have been made throughout the Committee—that this is a matter where proper parliamentary scrutiny is required. There may well be a role for certain delegated legislation, but please let us not add to it with still yet another way in which things can be done which avoid that full parliamentary scrutiny.

I hope that the Minister, when he responds, will be able to say something reassuring, both answering the questions posed by the noble Lords, Lord Pannick and Lord Beith, and saying why we need not be concerned and that the Government will content themselves with relying on those delegated powers that will be specific to the Bill, once this Committee and the other place have determined just what those delegated powers should be.

[Lord Keen of Elie]

I am obliged to noble Lords. I begin by making two observations. These amendments are linked closely to the issue we have already debated in Committee of the status of retained EU law and how we deal with it in the context of its status. As has been indicated previously in Committee, the Government have been listening and considering that, and we intend to come back to the House on the matter before Report. I mention that because it is a relevant backdrop to what we are considering at this stage.

On the points raised by the noble Lord, Lord Beith, essentially, the powers in paragraph 3 of Schedule 8 are, first of all, designed to remove what I might term the shadow of European law from what will be domestic legislation. However, more particularly, the noble Lord raised a point about the devolution issues and quoted from the Explanatory Notes. I understand that the section of the Explanatory Notes that he refers to addresses Clause 11 prior to its recent amendment. I appreciate that we then withdrew that amendment, but the Explanatory Notes should be read in that context. Essentially, therefore, we have moved on because of the decision to flip Clause 11—I think that was the term used—so I ask the noble Lord to look at the proposed amendment to Clause 11 to understand the context in which we now want to deal with this point.

[Lord Beith]

The noble and learned Lord is being reasonable, but he is inviting us to presume that we have moved on when we have not yet done so. The Government have indicated a willingness to look further at the Clause 11 issues and come back with something new. However, when we compare that discussion to the one we just had, it is a bit odd now to be invited to behave as if something has happened which has not happened yet.

[Lord Keen of Elie]

I understand the noble Lord’s point. He appreciates the statements of intent that we have made with regard to Clause 11. Although we withdrew the amendment to Clause 11, it was tendered and withdrawn for a particular purpose, in order to ensure that it could be finalised before Report. I hope that that addresses the noble Lord’s concern about the terms of the Explanatory Note that he quoted.

We have discussed on previous occasions in Committee the risk of ossifying the statute book and how that has to be balanced against checking the ability of the Government to propose changes to retained EU law. Clearly, as I indicated, the Government have heard the debates on the question of how we should treat the status of retained EU law, and we intend to come back on that. However, we must make provision for how delegated powers outside the Bill will interact with retained direct EU legislation. To do nothing would create uncertainty and potentially—by putting it beyond the reach even of Henry VIII powers that can modify Acts of Parliament—risk placing retained EU law on a pedestal of protection beyond even the elevated position of primary legislation. That is why I say that the two issues are linked: how we deal with the status of retained EU law but also carry on with our domestic powers to deal with the entire scope of our domestic legislation, including that which is going to be defined as retained EU law.