European Union (Withdrawal) Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 21st March 2018 Lords Chamber

[Lord Cormack]

My Lords, I will briefly add my support. I point out to my noble and learned friend, who gave a very sensitive reply to the previous debate, that a culture has grown up in Parliament in recent years: the proliferation of so-called “Christmas tree Bills”, which include very few specific proposals, allowing Ministers to hang whatever baubles they like on them. Together with the deep suspicion, that we all have, of Henry VIII provisions, I hope that that explains to my noble and learned friend why, with all the far-reaching consequences of this Bill, we are most anxious that the prerogative should remain with Parliament and that it should not be for Ministers to determine what is primary and what is secondary. I hope that building on his sensitive and—I do not want to sound patronising—sensible remarks at the end of the last debate, he will take on board what has been, and is being, said on this point.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, that one way or another it must be for Parliament to decide the essential ground rules that should apply in the future categorisation of retained EU law, certainly under Clauses 3 and 4, although perhaps not under Clause 2 as it is already domestic law. As I made plain some weeks ago—it seems like months—in an earlier debate, I do not, however, subscribe to the view of the Constitution Committee that all retained EU law should be designated as primary legislation. We discussed all this at the time. If what I may call in shorthand Professor Paul Craig’s suggested solution to this problem is adopted by following the EU’s own categorisation, under both the pre-Lisbon and post-Lisbon arrangements, somebody will have to apply that ground rule to this mass of 10,000, 20,000 or 30,000 instruments—however many they may be.

I suggested in an earlier debate, because this is what Paul Craig had said, that in fact four competent EU lawyers could carry out that whole process in a matter of three days. I may have those figures slightly wrong, but that is about it. But if that is left to be done after the passage of this legislation, some regulating power will have to be available to government to give effect to that process. The ground rules settled its application for regulation. I hold no particular brief for this being done under Clause 17(1); it may be that the better course would be to introduce the ground rules—as I say, Parliament’s specification of how basically the process is to be completed—within the legislation, and have a regulation-making power attached to that for the sole purpose of applying the ground rules. But I would not wish to leave unchallenged the Constitution Committee’s suggestion that the whole shooting match should be primary legislation.

[Lord Goldsmith]

My Lords, to some extent this is a continuation not just of the previous debate today but of previous debates that we have had on earlier days in Committee. That leads me to two observations, before I come to specifics on the amendment. One is on the very pertinent observation of the noble Lord, Lord Wallace of Saltaire, that if we do not advance at all before we get to Report we will have just as much time spent on Report as in Committee. Therefore, we very much hope that the Government respond to his suggestion or injunction to the Minister that we have some greater clarity on what the Government are going to do as a result of the consideration that they have been having for the last few days, when they have had time to consider some of these points. Indeed, I hope that it is not only the noble and learned Lord who is working on this—there are a lot more people in government who should and could be working on it. That is just one observation that demonstrates how much work there is to do, and how we need to move forward, hoping of course to do that in co-operation with the Government.

Secondly, I suppose people outside listening to this debate will wonder what on earth we are talking about. They expect that this Bill is about in or out and when and what the terms are, and the customs union. Those are important issues, too, but this debate illustrates how important some of the provisions in this Bill are. The question of whether something is to be regarded as a piece of primary legislation is fundamentally important; it has consequences for who legislates and how easy it is to amend that legislation, as well as for its effect in relation to other statutes. I draw this as a general view that has been expressed around the House, that it cannot be left simply for a Minister to decide. In previous debates, we have heard how many Ministers that could be. I made the observation—no one has yet contradicted it, although maybe it should be contradicted—that when you say that a Minister does something, under the Karl Turner principle that means that a civil servant can do it. I have the greatest of admiration for civil servants, but that would multiply the number very considerably. If we are talking about important constitutional provisions, about protection of rights and all the other things that the Bill is concerned with, it is not appropriate that decisions on who makes that decision should be left in this way.

I thank the noble Lord, Lord Pannick, for drawing attention to the fact, as others have too, that one consequence of this particular provision that my noble friend Lord Bassam of Brighton has dealt with touches on the question of who decides whether something is primary or secondary. The noble and learned Lord, Lord Mackay of Clashfern, made a very important observation, and so did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Today is not the day to decide which should be primary; what we are talking about is whether it should be simply for a Minister or for his officials to determine whether a particular piece of law should be treated as primary or secondary legislation. That is what the amendment raises, and it is important that we should have clarity on it, I hope before we get to Report.

The summary that is given in paragraph 69 of the Constitution Committee’s report, already referred to by the noble Lord, Lord Pannick, puts it in clear terms, including the last sentence that, as it stands:

“This is a recipe for confusion and legal uncertainty”.


We cannot afford this Bill, when it has completed its passage through this House and the other place, to leave the country in a state of confusion and legal uncertainty.