European Union (Withdrawal) Bill

Lord Callanan Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Lord Goldsmith]

I am delighted to be described as a Minister in that question—not a role that I am eager to take on—but it may be that the question was intended for the Minister himself when he comes to respond.

The important point, as the noble Lord, Lord Tyler, made clear, as did other speakers, is that, as the Bill stands it is subjective and imposes a vague, low test. It is subjective because it is what the Minister considers, and it is a low test because it is what he considers appropriate.

As I told your Lordships previously—I will repeat it just this one last time—as someone who has spent a life as a practising lawyer, a court advocate, advising Ministers and being a Minister, I know that there is all the difference in the world between saying, “You can do this if you consider it appropriate”—nobody can second-guess that—and saying, “You can do this if it’s necessary”. It introduces an objective test, and that is what matters. This is what we invite the House to say to the Government is necessary in these circumstances. That is the only power they should take, and I hope that when the noble Lord presses the amendment to a vote, it will be supported by many Members of this House.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, I first thank all those who have contributed to today’s relatively brief debate, and the many noble Lords I have either spoken to or exchanged letters with between Committee and Report. The scope of the delegated powers in the Bill has, rightly, been one of the most intensively scrutinised areas, and I do not for one moment doubt the best intentions of many of those who have spoken against the Government’s position today. However, I hope noble Lords will listen to my remarks with an open mind, as I hope to offer some new content that we did not cover in Committee.

Let me start by addressing the specific proposition of the amendments on the Marshalled List—Amendments 31, 42, 86 and 87, tabled by the noble Lord, Lord Lisvane. As has been said, they would remove from the main powers in the Bill the discretion of ministerial judgment on appropriateness, and permit action only where it “is necessary” in the context of the specific power. This has been touted as a change from a subjective test to an objective one. But I hope to demonstrate that this is not the case, as I would question what exactly “necessary” means.

For example, in the context of Clause 7, would the course of action a Minister takes have to be no more than necessary to correct the deficiency? Or must it be necessary to correct a deficiency for the power to be engaged in the first place—and if so, necessary for what purpose? Let me address these different scenarios in turn. First let us say, hypothetically, that a court interprets the amendments to mean that a course of action taken by Ministers must be necessary to correct an identified deficiency. It might follow that Ministers could follow only the course of action that does no more than is strictly necessary to correct that deficiency, rather than the course of action that is most sensible.

I know the House likes concrete examples, so let me give an example of how I think this would lead to worse policy outcomes. Take, for example, Section 105B of the Communications Act 2003—with which I am sure all noble Lords are completely familiar. This includes an obligation for Ofcom to notify its regulatory counterparts in other member states, as well as the European network and information security agency, when Ofcom is made aware of a security breach that affects a public electronic communications network or service, and Ofcom thinks it appropriate to make such a notification. It could be argued that it is not strictly necessary to delete the obligation at all. Let us assume, however, that a court accepts that some action is needed in this scenario. A test of necessity could then be taken to mean that the Government should take the minimum action possible to address the deficiency. That might be simply to remove the requirement to share information.

However, the Government's preferred policy, which this House would surely support, is to change it into a discretion that makes it explicit that Ofcom may make notifications of this kind if it wishes. This is intended to support proportionate information-sharing about security matters after EU exit. That amendment is appropriate but arguably not strictly necessary, and might fall foul of the increased restriction offered by the amendments tabled by the noble Lord, Lord Lisvane. I understand the notional appeal of permitting Ministers to act only where it is necessary. But here I agree with my distinguished predecessor, my noble friend Lord Bridges, the midwife, as he put it, to the Bill. It should not be the role of a Minister to be a statutory firefighter, dousing deficiencies in the statute book only where it is absolutely necessary. Instead, I would argue that a more proactive role is the only way that we can ensure the best possible outcome for the statute book.

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[Lord Tyler]

I am grateful to the Minister for giving way. How can what he is arguing be reconciled with the White Paper, which stated that,

“legal and policy changes would be made under the Bill only when it was necessary to ensure that the law continues to function properly after exit day”?

[Lord Callanan]

I think I have addressed that in my remarks, but I have some more comments to make which I think will address the noble Lord’s concerns.

However, as we have said throughout the passage of this legislation, we will give due consideration to all amendments that do not undermine the fundamental operation of the Bill. That is why we have accepted the recommendation of the Constitution Committee and tabled government amendments to ensure that, where the powers in Clauses 7(1), 9 or 17(1) are used, a statement must be made as to why there are good reasons for the instrument and the provision made is a reasonable course of action. Of course, we are going further with Clause 8 and propose to remove it from the Bill in its entirety. These amendments will be dealt with in a later grouping on Schedule 7, but they are key to set the context of this debate. They demonstrate the Government’s willingness to accept additional scrutiny if that scrutiny is appropriate.

[Lord Goldsmith]

I wonder whether the Minister would kindly consider this question: is he saying that he would want Ministers—and indeed, civil servants—to have the discretion to make policy changes from EU retained law without reference to Parliament?

[Lord Callanan]

The powers in this Bill cannot be exercised by civil servants; it has to be Ministers who make the decisions. We have said on a number of occasions that defining a policy change is quite hard. A pure correction can involve a slight policy choice—for instance, whether to designate one agency or another. It can still be a technical correction but it is a policy choice about what to do. But we are clear that we are not trying to make substantive policy choices through this secondary legislation power.

I will refrain from making the full case for the government amendments as they are not on the Marshalled List today, but I will quote the Constitution Committee in justifying our position. It said that such amendments,

“will require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially. In this way, the Government can secure the flexible delegated powers it requires while Parliament will have a proper explanation and justification of their use that it can scrutinise”.

That, to me, sounds like a sensible solution.

Before I finish, let me add the words of the noble Lord, Lord Pannick, who I am sorry to see is not in his place.

[Noble Lords]

He is.

[Lord Callanan]

I do apologise; he is behind the Bar, so he is not quite in his place. I hope he will not mind if I quote him. When comparable amendments were added by the Government to the Sanctions and Anti-Money Laundering Bill, and when speaking in support of government Amendment 9, to which he signed his name, he stated:

“I am satisfied that this will impose a real discipline on the Minister, backed up of course by the prospect of judicial review”.—[Official Report, 15/1/18; col. 439.]


That amendment passed without a Division—and I am sure the noble Lord will be supporting us in the Division tonight.

I know that I have offered new information in my speech today. In doing so, I hope that I have demonstrated that this is not simply a case of risk-averse Ministers erring on the side of caution. I can say with complete sincerity that the amendments on the Marshalled List today would necessitate a significant review of our secondary legislation programme and would surely lead to worse outcomes. In this, I agree with the noble Baroness, Lady Falkner. To avoid such a situation, I hope that the noble Lord will agree to withdraw his amendment. If, however, as I suspect, he wishes to test the will of the House, I suggest that he do so now, as this is not an issue the Government intend to return to at Third Reading.

[Lord Lisvane]

My Lords, I thank all noble Lords who have taken part in this debate—especially for their concision and brevity. I am in a position to help the noble Lord, Lord Skelmersdale, as I apprehended that his concern was that if the amendment were agreed, Clause 7(1) would be without a subject. But that subsection begins with the words:

“A Minister of the Crown”—


so it is quite clear who will be exercising the powers.

I listened very carefully to the noble Lord, Lord Bridges, and I hope that the difference of opinion which still remains between us is a demonstration that two reasonable people can disagree without either one being unreasonable.

I also listened very carefully to the noble Baroness, Lady Falkner of Margravine, who had the great courtesy to mention her concerns to me earlier. It seemed to me that her particular concern was the matter of discretion and the amount of time that would be required to make orders. I respectfully suggest that neither “appropriate” nor “necessary” will have an impact on time. There will be a great deal of pressure to produce the delegated legislation in the time required, but I do not believe that whether the word is “appropriate” or “necessary” will impact on that. In terms of ministerial discretion, there is still of course a substantial amount of discretion to be given to Ministers. The debate we are having is about the degree of constraint that there should be on that discretion.

The suggestion I made in moving the amendment, which the Minister was kind enough to recall, was reflected in the Delegated Powers Committee’s 20th report: namely, that some form of sensible definition, or at least the parameters of what could be done without going beyond the bounds of “necessary”, would be of great help to Ministers. If we are talking about avoiding legal uncertainty—and here I was most grateful for the intervention of the noble Viscount, Lord Hailsham, from his extensive professional experience—I do not think that adopting “necessary” would be necessarily an obstacle.

The Minister played the bowling in a very determined way, but the wicket has worsened substantially since Committee. He actually used the phrase about a course of action being “most sensible”—which seems to me to be at the heart of this. If one has some sort of expanded indication of what “necessary” can encompass, that seems to me to be exactly what is required. Nobody wants to stop Ministers doing things that are sensible—certainly I do not—but let us at least have them doing them on a canvas whose bounds are reasonably clear.

When he got on to “torturing” the English language, I felt that that really was a little hyperbolic. You do not torture a concept simply by telling people how you would like it interpreted. That seems again to me to be at the heart of the amendment.

The Minister’s Ofcom example was new material and very helpful, but it started to get into the area of whether there could be more than one solution to “necessary”—and, of course, there can, because, if there is a deficiency, there is not a single solution that is going to assuage that deficiency. There may be several of equal merit, and when they assuage that deficiency they demonstrate their necessity. So I did not really think that that was a particularly compelling example.

Of course, if we are to expect that significant policy changes will be made, the right route for making those changes is primary legislation, and there will be—as with a certain sense of foreboding we are well aware—a number of vehicles for such provision.

So I think that the Minister will not be surprised to hear me say that, despite a dogged defence of his wicket, I shall ask noble Lords to indicate their views, and I wish to test the opinion of the House.

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Moved by

[Lord Callanan]

32A: Clause 7, page 6, line 7, leave out “newly established or”

[Lord Callanan]

My Lords, I shall speak also to the other amendments standing in my name on the Marshalled List relating to the creation of public authorities.

I am pleased to say that the Government have listened to the discussions on this issue and have consequently tabled these amendments, which remove the ability to create public authorities from the Clause 7 power and also from the power in Clause 9. As noble Lords will have seen, the Government intend to remove Clause 8 in its entirety from the Bill.

We explained during Committee that, when Clause 7 was originally drafted, we thought it would be only sensible for the sake of contingency to include within its scope the ability to establish new public authorities to insure—as many amendments in the other place sought to do—against losing any important functions as they are transferred over from the EU, as no such public authority may currently exist in the UK.

Since then, the Government’s analysis of the transfer of functions with exit has progressed to a stage where we now consider that the establishment of a new public authority will be necessary only in a very limited number of cases. In the event that no appropriate public authority currently exists in the UK to take on functions transferred from the EU, the Government will instead bring forward the appropriate provisions under primary legislation.

As noble Lords will be aware, at the end of last year the Secretary of State for Environment, Food and Rural Affairs announced plans to create a new environmental body to advise and challenge government and potentially other public bodies on the environment. It is still the Government’s clear intention to create this new environmental body but, instead, it will now need to be delivered through a separate legislative vehicle. As I informed the House on Monday evening, the consultation on the environmental body will be published ahead of Third Reading on 16 May.

In order to maintain consistency between the powers given to the UK Government and the devolved Administrations, the restrictions preventing the establishment of public authorities in the UK after exit will also apply to the devolved Administrations. We discussed this with the devolved Administrations in advance of tabling these amendments and gave them the opportunity to consider what impact this might have on their preparations for exit day. We are not aware of any circumstances where they were anticipating using the power in this way, and they have not raised any concerns about the restrictions applying to the equivalent Schedule 2 powers.

I am grateful to the noble Lord, Lord O’Donnell, for pursuing this issue and I am pleased to say that his Amendments 33 and 35, seeking to remove this ability from the Clause 7 power, are now not necessary, as the Government’s amendments cover this and more. I hope the noble Lord feels satisfied by these amendments and will accept them. I also hope that this demonstrates the Government’s commitment to narrowing the scope of the powers wherever practical without threatening the Bill’s core purpose to deliver a functioning statute book on exit.

I turn to the noble Lord’s Amendment 103, which seeks to restrict subdelegating fees powers under Schedule 4 to public authorities taking on new functions. This matter will be discussed further, later on during Report stage, when we will address similar amendments. Therefore, for now, I will remain brief in my response. I hope the noble Lord feels reassured by the amendments on subdelegation tabled by the Government that will ensure that, where a power is exercisable by a public authority without further direct reference to Parliament, that authority must continue to inform Parliament about the exercise of the power. This will allow Parliament to maintain oversight of the use of delegated legislation-making powers. In anticipation of the later discussion, I ask the noble Lord not to press his amendment.

I beg to move the government amendments. In doing so, I want to inform the House that this is not an issue to which we intend to return at Third Reading.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I have to inform the House that if Amendment 32B is agreed to I cannot call Amendment 33 by reasons of pre-emption.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, I commend the Government for these amendments, which respond to and accept the arguments made in Committee. As I argued then, and there is a reason for me repeating this, the very way that we set up quangos—how they are appointed, funded and run, and particularly their reporting structures and independence from both government and any other organisation they happen to be regulating—is key to how they work, hence the need for primary legislation so that we can interrogate all these things. That is why I very much welcome what has been said.

I am afraid, however, that I am led to make one comment, which is aimed not at the Minister but at friends of his in another place. After the vote last week on the customs union, we read in the Sun that the Government were going to remove those Conservative Peers who had voted for a customs union from their various positions on public bodies. I am absolutely certain that those threats, although mere briefings, did not emanate from anyone in this House. That is simply not the way that I have seen those on the Government Benches here work. They recognise the role of the Lords and that it is our job, on occasion, to ask the Commons to think again, even if sometimes that is a bit inconvenient when it comes from their own side. However, it was rather disturbing to learn that there are certain people around No. 10 who could, even for a moment, think that it would be right to undermine the independence and arm’s-length nature of such bodies, as is often written into their statutes, simply because Members of the House of Lords voted in a certain way. Everything I know about Ministers in this House means I know that not only were they not involved in this but they were probably as shocked as I was. Perhaps the Minister would like to take the opportunity to distance himself from such threats and reaffirm what I know to be government policy: that any appointment to such bodies is done without fear or favour and nobody would be taken off them for a choice that they made in this House.

On the essence of the amendment, and particularly given the role of the Minister and his officials, we are happy to support the government amendments.

[Lord Callanan]

My Lords, I am grateful to all noble Lords who have contributed to this debate. There were relatively few but I thank them and I hope these amendments satisfy the concerns that have been previously raised in the many discussions I have had with noble Lords about this matter. It is proof that, despite the accusations that have been made, we are listening and will respond appropriately if we deem something to be necessary and it improves the legislation, which on this occasion we do.

I am not going to comment on every press article. Precise recruitment criteria are set down for these posts. I am sure that those criteria will be followed and that all appointments will be made on merit.

I hope noble Lords welcome the reassurance that these amendments provide and recognise that this reflects the sincerity of the Government’s commitment to narrowing the scope of the powers wherever practicable without compromising the purpose of the Bill.

Amendment 32A agreed.

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Moved by

[Lord Callanan]

33A: Clause 7, page 6, line 15, after “taxation” insert “or fees”

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[Lord Callanan]

My Lords, it is my pleasure to lead on this group of amendments. They are simple, short and, I hope, demonstrate again that the Government are listening to debate in the House.

The Government’s clear intention has been to make bespoke provision in relation to all financial matters in the Bill. It was introduced with a specific power to make provision in relation to fees and charges in Schedule 4. I know that that power is not without controversy and we shall debate it in full later on Report.

The powers in clause 7(1) and (9) could never, even if it were appropriate to remedying a deficiency or implementing the withdrawal agreement, make provision for a charge, as such measures contain an element of taxation prohibited in the exercise of these powers. That distinction is the distinguishing feature of a charge and why, at the time of our accession to the EU, specific provision for charges was included in the Finance Act 1973. The Government are tabling these amendments to prohibit the powers in Clause 7(1) and (9) from imposing or increasing fees, so as to provide clarity on the distinct purposes of these powers and those in Schedule 4.

The powers in Clause 7(1) and (9) will still be able to repeal fees regimes that are no longer needed, reduce fees and make amendments to pre-exit powers to provide for fees and charges. An example would be correcting a deficiency in an existing fee-setting power, such as a reference to a directive which is no longer appropriate. They will not, however, be able to impose or increase a fee or charge themselves.

These amendments respond to amendments and questions which were raised in debate in Committee. As I have said, we have reflected on this and taken steps to ensure that the stringent scrutiny provisions we are applying to Schedule 4 cannot be circumvented. This was never our plan but I can feel the mood of the House and I know that the word of a Minister only goes so far. I hope that these amendments demonstrate that we are keen to put questions beyond doubt where we can. I beg to move.

[Baroness Kramer (LD)]

This is another opportunity to thank the Minister because some peace of mind will now be provided about the structure of Clause 7. We understand now that the Government have stepped away from any capability to introduce new or increased fees.

I also thank the Minister for clarifying what a charge is. Many in this House have been trying to understand exactly how it could be framed. I hope the fact that he has now described it in the House will, in effect, put that definition on the record so that no future Government will attempt to use the word “charge” in order to circumvent these various constraints. Again, on this occasion, I thank the Minister.

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[Lord Callanan]

Again, I thank noble Lords for their brief contributions. As I said in moving the amendment, this group comprises simple amendments and I hope that I have convinced the House to accept them in the spirit in which they have been tabled.

Amendment 33A agreed.

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Moved by

[Lord Callanan]

34A: Clause 7, page 6, line 17, at end insert—
“( ) establish a public authority,”

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Moved by

[Lord Callanan]

34B: Clause 7, page 6, line 21, after “repeal” insert “the Scotland Act 1998, the Government of Wales Act 2006 or”

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[Lord Callanan]

My Lords, the Government recognise the vital importance of our devolution settlements and the Acts that give effect to them: the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006. We have considered the concerns raised during Committee about the potential for the Government to use the Clause 7(1) power to amend those Acts. The Government have consequently brought forward amendments that mean this power cannot be used to substantively alter those Acts.

As noble Lords will agree, we must ensure that any deficiencies that would arise within those Acts by virtue of our leaving the EU can be addressed, so that these crucial pieces of legislation continue to work appropriately on and after exit day. We have sought to make the majority of corrections to deficiencies that arise from EU exit to those Acts in the Bill, so that we can be transparent about what corrections need to be made and the extent of those changes. Noble Lords will see from those corrections already included in Part 2 of Schedule 3 to the Bill that they are essentially technical corrections to ensure the proper functioning of these Acts.

At the time of the Bill’s introduction, outstanding corrections to the Scotland Act and the Government of Wales Act were still being discussed with the Scottish and Welsh Governments, and in the case of the technical standards reservation with the Northern Ireland Civil Service as well. As a result of our discussion with the devolved Administrations, we have now agreed the means through which the remaining deficiencies in these Acts will be dealt with and can confirm that the correcting power will not be needed to make any of those changes.

In the light of our commitment to Parliament that we will not take powers in the Bill that are broader than they need to be and to provide reassurance to the devolved institutions, we can therefore remove the ability of the correcting power in Clause 7(1) and in Schedule 2 Part 1 to amend the Scotland Act and the Government of Wales Act. We can also remove the exemption from the protection for the Northern Ireland Act that would allow the power to amend paragraph 38 of Schedule 3 to that Act, the so-called technical standards reservation. These protections are applied by our Amendments 34B, 34C, and 34D.

Given the further protection for the Northern Ireland Act, the correction of the deficiency in the reservation of technical standards can now be achieved only through primary legislation. Amendment 92F therefore adds that correcting provision to the Bill. Since the reservation is consistent across the three devolution settlements, Amendments 92B and 92E make the corresponding corrections to the Scotland Act and to the Government of Wales Act.

Although this is a technical correction, I wish to take a moment to talk through this in detail, as I hope noble Lords will appreciate, given the complexities of this matter and the fact that it relates to a reservation. I can also confirm to noble Lords that the drafting of the amendments has been shared with, and agreed by, the devolved Administrations, and I would like to express my gratitude to officials in the devolved Administrations for their input and constructive approach in helping us to develop these amendments.

The current reservation applies to:

“Technical standards and requirements in relation to products in pursuance of an obligation under EU law”,


except in areas that are specified as exempt. The provision can be found in paragraph 38 of Schedule 3 to the Northern Ireland Act, Section C8 of Schedule 5 to the Scotland Act, and Section C7 of Schedule 7A to the Government of Wales Act as amended by the Wales Act 2017. It is our express intention that, in ensuring the reservation continues to operate as intended once we leave the EU, we should preserve the current boundary between devolved and reserved competence.

The effect of the amendments before noble Lords today is, therefore, that those standards subject to the current reservation will continue to be a reserved matter, including as they may be modified from time to time. It is the Government’s view—shared by the devolved Administrations—that a standard should not cease to be reserved simply because it has been updated. I would also like to assure noble Lords that the revised reservation will not apply in those areas where the devolved institutions currently have competence.

Let us take, for example, the case as it currently stands in relation to cigarette packaging. The obligations under EU law apply certain standards—for instance, in relation to the inclusion of health warnings on the packaging. The current reservation requires that the devolved institutions cannot legislate in relation to those standards, but it does not preclude them legislating to provide additional standards to cigarette packaging where they would be compatible and within an area of devolved competence. That will continue to be the case under the amended reservation. Indeed, when the UK Government brought legislation before Parliament to introduce plain packaging for tobacco products across the whole of the UK, we sought and received LCMs from the devolved legislatures because it would have been within their competence to make those provisions themselves.

Similarly, the devolved institutions could choose to extend those standards to products within their competence that are not specified by the relevant EU law. The reservation will also not apply to brand new standards that arise post-exit—for instance, to a new product that has been brought to market but is not currently subject to EU standards. Those would not have arisen in the UK in pursuance of EU law, even if the EU chooses to legislate on those matters after we have left, so would not be covered by the current reservation or the revised reservation. The exemptions that apply to the current reservation—for instance, in relation to food, agricultural and horticultural produce—will also continue to apply so standards in those areas, as now, will not be reserved.

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[Lord Callanan]

I thank the noble Lords, Lord Beith and Lord Griffiths, for their contributions to this short debate. These are important amendments and they reflect important progress. It has never been the Government’s intention to use the correcting power to change our devolution settlements, and I hope noble Lords will agree that the amendments put the matter beyond doubt. I hope they welcome the reassurance that the amendments provide and recognise that this reflects the sincerity of the Government’s commitment to the devolution statutes.

Amendment 34B agreed.

Moved by

[Lord Callanan]

34C: Clause 7, page 6, line 23, leave out from “repealing” to “any” in line 24

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[Baroness Jones of Whitchurch]

As ever, I thank my noble friend for his helpful advice. He must be right.

We of course support the amendment in the name of the noble Baroness, Lady Jones of Moulsecoomb. It is another option but, on the basis of the debate we have had so far, I hope noble Lords will support Amendment 40 as it stands.

[Lord Callanan]

My Lords, let me start by being crystal clear about the Government’s commitment to animal welfare as we leave the EU. As the Prime Minister said in another place on 22 November,

“we already have some of the highest animal welfare standards in the world, and as we leave the EU, we should not only maintain, but enhance them. We have already set out our proposals to introduce mandatory CCTV in slaughterhouses; to increase sentences for animal cruelty to five years; to ban microbeads, which damage marine life; and to ban the ivory trade to help bring an end to elephant poaching”.

The Prime Minister went on to explicitly confirm:

“We also recognise and respect the fact that animals are sentient beings and should be treated accordingly. The Animal Welfare Act 2006 provides protection for all animals capable of experiencing pain or suffering which are under the control of man”.—[Official Report, Commons, 22/11/17; col. 1038.]

The following day my right honourable friend the Secretary of State for Environment, Food and Rural Affairs set out in a Written Ministerial Statement in the other place that:

“This Government will ensure that any necessary changes required to UK law are made in a rigorous and comprehensive way to ensure animal sentience is recognised after we leave the EU”.


But, as he further noted,

“The withdrawal Bill is not the right place to address this”.—[Official Report, Commons, 23/11/17; cols. 35WS-36WS.]

In this respect I agree with my noble friend Lord Hodgson. The Government’s commitment to legislating in this area is in no doubt. I can confirm to the noble Baronesses, Lady Jones and Lady Bakewell, and to my noble friend Lady Byford, that not only have we made that commitment but we have begun work on drafting and developing that legislation.

In December, the Government published draft legislation to address the recognition of animal sentience through the Animal Welfare (Sentencing and Recognition of Sentience) Draft Bill. The public consultation on the draft Bill closed on 31 January. We have received over 9,000 responses, which the Government are analysing. The magnitude of the response highlights not only the importance and complexity of animal sentience in and of itself, but also the manner in which it is recognised in legislation.

On 1 February, the Environment, Food and Rural Affairs Select Committee in the other place published its pre-legislative scrutiny of the draft Bill, and the Government’s response to that was published earlier this week on 23 April. I do not know whether that is the consultation which the noble Baroness, Lady Jones, said she had not seen yet, but if that is the case, I will be happy to get my officials to send her a copy. However, we have responded to that consultation. In its report, the committee highlighted a number of concerns about the draft Bill, which once again serves to underscore further the complexities of the issue and why it is so important that we get this area of the law right, a point that was well made by my noble and learned friend Lord Mackay. That is what we all want, but I am afraid that the amendments before us will not achieve that, as I will outline shortly.

As previously stated, there is no question but that the Government regard animals as sentient beings. As we said in relation to this issue during the Committee stage of this Bill, we certainly agree with the underlying sentiments of amendments such as that tabled by the noble Baroness, Lady Jones of Moulsecoomb, and of course the noble Lord, Lord Trees. However, as we also said in Committee, we cannot support them.

In order that there can be no ambiguity regarding the Government’s resolve on this matter, let me be clear again that the Government intend to retain our existing standards of animal welfare once we have left the EU and, where possible and practical, to enhance them. My noble friend Lady Oppenheim-Barnes set out some important areas that we would want to consider in this respect. Perhaps I may also be clear that the Government fully recognise the level of support for our commitment to maintaining and enhancing our high standards of animal welfare as expressed not only in this Chamber and the other place but also among the general public. The groundswell of feeling on this matter is surely a testament to the UK as a nation of animal lovers who share a proud and long history of legislating to protect animals from cruelty and suffering, much of which of course predates our accession to the EU. As we move towards a new relationship with Europe and the rest of the world, we are absolutely determined to maintain our high animal welfare standards, to improve on them where appropriate, and to legislate to do so where necessary.

However, as has been said, the purpose of this Bill is to provide continuity by ensuring that we have a functioning statute book upon our exit from the EU. As I am sure noble Lords appreciate, in relation to the European Union and EU member states, Article 13 creates an obligation to have full regard to the welfare requirements of animals when formulating and implementing EU policies on the basis that animals are sentient beings. However, the underlying requirement to consider the needs of animals contained in Article 13 is limited to a small number of EU policy areas. The resulting impact of Article 13 on domestic law is therefore minimal. At its conception, Article 13 was considered by many to be a symbolic step change in our relationship with animals that would drive radical improvement in animal welfare across Europe. In reality, its impact has failed to materialise. Simply transferring Article 13 as it stands into domestic law would be a disservice to the cause of animal welfare and is not in keeping with the Government’s aim for the UK to be a world leader in this area.

The draft Bill that I mentioned earlier sets out a possible method to better enshrine the principles of animal sentience in domestic law. Notably, and unlike Article 13, the draft Bill does not seek to restrict the recognition of animals as sentient beings to specific policy areas, a change that we hope noble Lords will agree is a significant improvement. The draft Bill also imposes a clear duty on Ministers of the Crown to have regard to animal welfare.

Given the complexities that I touched on earlier, it is crucial that this issue is given the consideration and effective legislation that it deserves to avoid replicating the issues contained in Article 13. For this reason, I regret to say that we cannot support the amendment tabled by the noble Baroness, Lady Jones of Moulsecoomb. The amendment appears to seek to transfer the obligations contained in Article 13 to domestic law. However, this clause applies only to the formulation, rather than to the formulation and implementation, of law and policy. It is the Government’s view that this clause would further reduce the already limited scope of Article 13.

I would like to reassure noble Lords—and I know that the noble Lord, Lord Trees, is particularly interested in this fact—that the Government and the EU have reached agreement on an implementation period following our exit from the EU until the end of December 2020, and Article 13 would continue to apply during that period.

Turning to Amendment 40, moved by the noble Lord, Lord Trees, the proposed new clause seeks to place a duty on Ministers of the Crown and the devolved Administrations to pay due regard to the welfare requirements of animals when formulating and implementing public policy. I am grateful to the noble Lord for his contribution, and as other noble Lords have indicated, he does of course have much experience in this area. I am also grateful for the constructive engagement that he has had with the Government, and I was pleased to meet with him earlier this afternoon.

The clause also seeks to prevent judicial review for failure to comply with that duty, instead requiring the Secretary of State to account to Parliament and requiring the devolved Administrations to account to their respective legislatures. This appears designed to address concerns raised by the Commons EFRA Committee about the need to avoid an unnecessary and costly burden being imposed on the courts in the pursuit of replacing Article 13. However—and this reflects on the points made by the noble and learned Lords, Lord Hope and Lord Judge—due to the constitutional significance of legislation to this effect, very clear wording is required to remove the availability of judicial review. The current drafting of the amendment is not sufficiently clear, meaning that it is likely that policy decisions could still be subject to judicial review for failure to comply with the duty to pay due regard. Here I bow to the superior wisdom of my noble and learned friend Lord Mackay on this subject.

In addition, the Secretary of State and the devolved Administrations would be accountable to their respective Parliaments for their compliance with the duty and need to report on an annual basis on the formulation, implementation and effectiveness of policy related to animal welfare. Subsection (3) states that it is for Parliament to decide how the duty has been properly discharged. However, it is likely to be argued by some that subsection (1) creates a distinct duty that can in fact be used to judicially review policy decisions.

We are carefully considering how to take forward the recommendations made by the EFRA Committee and others during the consultation. We are grateful to the noble Lord, Lord Trees, for his proposed formulation and will consider it carefully as we decide how to take forward the measures that we have set out in the draft Bill.

I again reiterate that the aim of this Bill is to provide a framework which ensures that our impending exit from the EU occurs in an efficient and timely manner. It will urgently provide the reassurances needed in order to plan for day one as we leave the EU. As part of that function, this Bill will retain the existing body of EU animal welfare law in UK law, ensuring that the same protections are in place in the UK following our EU exit.

I hope that what I have had to say provides reassurance to the noble Lord and the noble Baroness on the Government’s firm stance on animal sentience and that the noble Lord will feel able to withdraw his amendment. However, I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House, he should do so now.

[Lord Trees]

My Lords, I am grateful to all noble Lords who have spoken in this stimulating and interesting debate, and I hope that it has provided food for thought. Above all, I hope that it gives the Government an impetus to solve this problem. Perhaps I may address some of the points that have been raised.

The point about adding specific issues to a general Bill of this type was made by the noble Lord, Lord Hodgson, and others. I have huge respect for the noble Lord, who is a great fighter for animal welfare. I will answer in two ways. Normally I would totally agree with the point, but these are not normal times; rather, we are living through extremely extraordinary times, and I think that extraordinary times need some special and novel remedies. The second point is that we are seeking to enable a very specific and defined issue through making a modification to the EU withdrawal Bill.

With regard to the technical objections raised on proposed new subsection (3), I absolutely defer to the expertise of the noble and learned Lords, Lord Hope, Lord Judge and Lord Brown. We sought to give Parliament authority to have oversight of how proposed new subsection (1) would operate. Parliament could define the mechanisms and the definitions, getting over some of the points made by the noble and learned Lord, Lord Brown. As the noble and learned Lord, Lord Mackay, said, it does not absolutely exclude the possibility of judicial review. It certainly reduces the possibility, which was a recommendation of the EFRA Committee report, but it does not exclude it, as the Minister acknowledged as well. We seem to have been criticised for excluding judicial review; on the other hand, perhaps we are not, so although that is an important issue it clearly needs further clarification.

No one would be more pleased than me to see the text of the amendment improved further. It could be done by the Government and tabled as an amendment on Third Reading. I had written that down before the noble Lord, Lord Rooker, made his helpful intervention, for which I thank him. No one would rather see this improved than me. I am very happy to take criticism; I am an academic of long experience and used to lots of criticism. Let us get it better but let us get it done.

Finally, turning to the main issue, I do not doubt one bit the sincerity of the Government and the Minister in wishing to see this sorted but, as has been pointed out by several noble Lords, it has already taken a long time to get this rectified. A vast tsunami of legislation is coming along the tracks, which will demand a slice of a finite amount of parliamentary time. In particular, Defra has a huge burden of legislation and adjustment to make around Brexit. While I am in no way questioning the sincerity of the Government’s desire, stuff happens. Ministers come and go. Other priorities emerge. It is particularly disappointing that the Minister has made no commitment to when we might see an improved animal welfare Bill.

Our negotiators will shortly go into battle to negotiate the trade of livestock and livestock products. They need assurance behind them so that they can argue that our welfare legislative standards are absolutely the equal of those of the rest of the EU, and so on. If we wait, I fear that we will be waiting for Godot. Noble Lords need no reminding that Godot never came, so it is with a heavy heart that I feel I must test the opinion of the House.

--- Later in debate ---

Moved by

[Lord Callanan]

47A: Clause 8, leave out Clause 8