European Union (Withdrawal) Bill

Lord Faulkner of Worcester Excerpts

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

Amendment 20 not moved.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I cannot call Amendment 20A, as it is an amendment to Amendment 20.

Clause 3 agreed.

European Union (Withdrawal) Bill

Lord Faulkner of Worcester Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

I will make one final point. I dare say it will be said by the Government on this subject that Francovich will not be appropriate after we have left the Union because we will not be part of it any more and the whole purpose of Francovich is to provide a remedy to those who are disadvantaged by the non-observance of Union law in the European Union. My view is that we should make sure that those people who currently enjoy those rights and remedies—which is all our citizens—should continue to enjoy them in respect of the same laws as they do at present, in other words in respect of retained law. There could be a very reasonable and attractive agenda that would say that we should extend the Francovich principle from a Union law or a retained law to the generality of law in this country—British law, English law, Scots law et cetera. I would be very much up for that and in favour of it, but I see that as slightly complicating the issue and I fear that I shall be told that this Bill is not the right vehicle—that is probably correct—in which to achieve that purpose. But my purpose is to make sure that we continue to have the rights that we enjoy today—and if we accept the amendment we will achieve that.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I must advise the Committee that if this amendment were agreed to, I would be unable to call Amendments 44 or 45 for reasons of pre-emption.

[Lord Carlile of Berriew (CB)]

My Lords, for those of us who have real enjoyment in the law, a nice bit of law at three minutes past midnight is rather like a comforting, calm, creamy cup of cocoa, but I recognise that not everybody is of the same view. With that in mind, I propose to elide in the remarks I am going to make comments on Amendment 45, which appears in my name and that of the noble Lord, Lord Lucas, and on Amendments 48 and 50, which appear with the same names. That should save time in a few minutes because I understand that we intend to complete that group as well.

These amendments are designed to retain the so-called Francovich principle. I congratulate the noble Lord who has just spoken on summarising it very well. I will add a little bit of flesh on it because I wish to try to tease out of the Minister a welcome response to those of us who seek to preserve at least part of the Francovich principle, although I would happily pass to him the burden of perfected drafting.

In the Gina Miller litigation, in which the noble and learned Lord and my noble friend Lord Pannick played starring parts, the Government in their submissions place considerable weight on their intention to enact what was then called a “great repeal Bill”. As the Supreme Court understood it, that Bill would—and this is a quotation from the majority judgment at paragraph 34,

“repeal the 1972 Act and, wherever practical … convert existing EU law into domestic law at least for a transitional period”.

Surprisingly, in relation to the Francovich principle, there has been no conversion and no transition. I ask the Minister to explain whether that really is the position that the Government wish to maintain.

The Francovich principle is a principle of existing EU law which requires damages to be available where three conditions are met: first, that the rule infringed was intended to confer rights on individuals—I am sure that we would all applaud that; secondly, that the breach was sufficiently serious to give rise to a legal action, which I am sure we would also applaud; and, thirdly, that there was a direct causal link between the breach of the obligation resting on the defendant and the damage sustained by the injured party, and I am sure that we would all applaud that, too. Perhaps the Minister would explain why he wants to get rid of that principle.

To provide a little more explanation for the fascinated non-lawyers here, who may just about be in a majority—

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[The Deputy Chairman of Committees]

The noble Lord must move the amendment before he can withdraw it.

[Lord Carlile of Berriew]

I beg to move. Can I withdraw it now?

[The Deputy Chairman of Committees]

It is the property of the Committee until the noble Lord obtains its permission to do so.

Amendment 48 withdrawn.

European Union (Withdrawal) Bill

Lord Faulkner of Worcester Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

I advise the House that if Amendment 70 were agreed to, I would not be able to call Amendments 70A to 70BB because of pre-emption.

[Lord Sharkey (LD)]

My Lords, I declare an interest as chair of the Hansard Society, whose work on delegated legislation will be familiar to many of your Lordships. I will speak briefly in support of Amendment 70—the sifting amendment—to which I have added my name. I will also speak briefly to introduce Amendment 71. The noble Lord, Lord Lisvane, has set out very powerfully the case for Amendment 70—for the sifting committees’ decisions to be binding on Ministers—as has the Delegated Powers Committee in its reports.

When we debated an equivalent amendment in Committee, the Government’s argument against the proposal relied chiefly on their assertion that they were in any case likely to accept the sifting committees’ decisions and that, as the noble Lord, Lord Lisvane, said, ignoring them would be, “hopefully, very rare”. This is a very weak argument. It is not based on principle. It is based on a suggestion of compliance, except in undefined, unexampled and no doubt exceptional circumstances. What it really means, of course, is that the Government, at their absolute discretion, will be able to impose the negative procedure on SIs, denying Parliament the more robust and intensive scrutiny provided by the affirmative procedure.

There is simply no case for allowing the Executive this unfettered and unqualified discretion. If Parliament is properly to exercise its scrutiny function in the face of the tsunami of SIs coming our way, it must be able to decide conclusively which SIs deserve higher levels of scrutiny and which do not. That is the whole raison d’être of the sifting committees: they allow Parliament itself to decide which SIs merit what level of scrutiny.

Not only have the Government demonstrated no real need for this override power, they have not even hinted at any harm that might be done by making the sifting committees’ decisions binding. In any case, throughout this Bill we must guard against the unnecessary transfer of power to the Executive. What the Government propose is such an unnecessary transfer of power. I hope that the noble Lord, Lord Lisvane, will press his amendment to a vote. If he does, we will support him.

I turn very briefly to Amendment 71, which is in my name and those of the noble Baroness, Lady Jay of Paddington, and the noble Lords, Lord Lisvane and Lord Norton of Louth. The Government expect this Bill to generate between 800 and 1,000 SIs. There will be many others generated by other Brexit Bills. As things stand, we have only two options for dealing with these SIs: we can accept them or we can reject them. A regret Motion has no practical effect.

In the past, this House has shown an understandable and very deep reluctance to reject affirmative SIs. We have rejected just six in the past 68 years. We have used our “nuclear option” very infrequently. This entirely understandable reluctance to reject will certainly continue for withdrawal SIs. But given the enormous volume of such SIs and the delicate and sensitive areas they will deal with, this proper reluctance to press the red button will almost certainly lead us to approve marginal cases or cases about which we retain serious misgivings. This would be an unsatisfactory outcome for the quality of created law and potentially damaging to the balance of power between the Executive and Parliament.

Amendment 71 proposes an additional method of dealing with affirmative SIs—and it is an additional method; it does not in any way affect our current powers. We would retain unaltered our powers to approve or reject, exactly as at present. Amendment 71 would simply allow us to do what we so frequently do: to ask the Commons to think again. Where we believe that asking the Commons to think again would be desirable, we simply co-ordinate scrutiny so that the Commons can pronounce first. If it rejects the SI, that is the end of the matter. If it approves, Amendment 71 would allow us to ask the Commons, with reasons, to think again. This mechanism would not frustrate the will of the Commons. If it chose not to reconsider within 10 days, the Lords would be deemed to have approved the instrument.

Amendment 71 would give Parliament more flexibility and room for more discussion in dealing with those SIs where real concern exists but where we are properly reluctant to reject. It simply allows a conversation with the Commons, after which the Commons will decide the matter. I commend it to the House.

[Baroness Neville-Rolfe (Con)]

My Lords, I rise to move Amendment 84 and I am grateful for the support of the noble Baroness, Lady D’Souza. During the passage of the Bill I have raised several issues, all of them designed to ensure that the SIs that will eventually be made under it when it becomes an Act will contain as few errors as possible. This may seem a modest aim, but we are in uncharted waters, and the amount of secondary legislation that will be needed, as has been mentioned, and the little time available to make many hundreds of instruments, taken together with the imperfect nature of human faculties, make error all too likely. One way to minimise this is to consult those with knowledge of and interests in the question at issue. This in turn necessitates publishing draft instruments that can be scrutinised by all. As is so often the case, openness is the best antidote for error.

We have made progress. The Minister has kindly arranged for me to meet officials concerned with agriculture, customs, intellectual property and financial services. It is clear to me that proper plans have been made. A few draft instruments have been published, but things are moving forward at a slow pace. We have made less progress on agriculture than I had hoped; I should declare an interest as chairman of Assured Food Standards Ltd, which operates the Red Tractor scheme. However, this is not the fault of Defra, which seems to be well resourced in this area. One of the serious problems for that department stems from recent rows over devolution, which affects draft SIs in the vital areas of agriculture and fisheries. Defra seems unable to publish drafts without the agreement of the devolved Administrations. This has proved to be an unfortunate state of affairs, which would have been better avoided—but in any case it would be better for everyone in the UK, including the devolved Administrations, if many more specimen drafts were published immediately.

There have been several debates on subordinate legislation and I am glad that the Government have made some very important concessions on scrutiny. Indeed, this very evening they have done so on ambulatory references and arrangements in Scotland. However, the Government have also lost on an amendment in this area, which means that they will be looking at the arrangements again in the House of Commons. That is where I believe Amendment 84 might be useful. It is modest—much more modest than my earlier amendments and those of others—and asks the Government to make public their statutory instruments on GOV.UK 10 days before they are laid. That is all I ask. It would be any 10 days, including parliamentary recesses and festivals.

I would like the Minister to write this into law, perhaps as part of the review of Amendment 31, in the name of the noble Lord, Lord Lisvane, and its consequentials. But if that cannot be, I would like her to undertake to add this provision to government guidance on the making of statutory instruments. As an ex-Minister who has had the embarrassment of having to make new orders correcting past mistakes, I can assure her that future legislators and civil servants would thank her. I beg to move.

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

It may be for the convenience of the House if I remind your Lordships that we are debating Amendment 70 and the other amendments in the group. The noble Baroness, Lady Neville-Rolfe, spoke to Amendment 84, which is grouped with Amendment 70 —but agreeing to Amendment 70 is the question before the House.

[Viscount Hailsham]

My Lords, I support Amendment 70, moved by my noble friend Lord Lisvane. May I express the hope that it serves as a precedent for use in other legislation? The parliamentary control of statutory instruments is notoriously inadequate. I speak with a considerable degree of experience, having lived through some 31 years of statutory instruments. We know that far too much legislation is passed through this House without any sensible scrutiny, discussion or amendment. I personally have always argued for the amendment of statutory instruments. I ventured to put forward proposals in Committee on this Bill. They did not make any progress, and I know full well that they will not do so in this Bill now.

However, the suggestion put forward by the noble Lord, Lord Lisvane, is a useful first step in that it would require Ministers to explain why the negative procedure has been adopted. Furthermore, it would give Parliament the opportunity to transform a negative procedure into an affirmative procedure. While the affirmative procedure is far from perfect, it is a great deal better than the negative procedure and, on that basis, it is very much a useful first step. I support the noble Lord’s amendment and I say to the noble Baroness, Lady Neville-Rolfe, that I have a strong support for her proposal, too. It seems to me that transparency is a very good idea—but I will make one caution, if I may. There will be times when statutory instruments take an emergency character, and the 10-day limit could cause a serious problem. That will need to be addressed if her amendment makes further progress.

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[The Deputy Speaker]

My Lords, in the third Division earlier this evening on Amendment 110A, the number of noble Lords voting Content was 247, not 245 as announced in the Chamber.

As a result of the House accepting Amendment 70, I am unable to call Amendments 70A and 70B and the amendments to those amendments for reasons of pre-emption.

Amendment 70C

Moved by