Trade Bill

Lord Garnier Excerpts

Report: 1st sitting: House of Lords
Wednesday 6th March 2019 Lords Chamber

Some have therefore suggested, as the Secretary of State did, that animal welfare should not have a place in the trade discussions. Some have indicated that that is not permitted under WTO rules. I hope that the Minister will not say that when she responds to this debate, because the UK has a number of trade bans relating to animal protection that have been implemented as part of international obligations or agreements, such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. For example, the UK has had an import ban on products from endangered species, such as tiger skins, ivory and pangolins, dating back to 1975, 1989 and 2016. This has been a consistent approach by the UK. Furthermore, we have a number of trade bans which have been implemented across the EU and have never been challenged or tested, so they can remain in place. They include an import ban on fur produced from cats and dogs, which was implemented due to concerns about the killing methods used. All those indicate that we have a wide set of standards which need to be protected in the existing continuity agreements. However, I repeat that only a tiny fraction of them will have been agreed before exit day and therefore after exit day they might not be considered by the Government to be merely continuity agreements—they would be trade deals. That is why this amendment to correct some of the misleading statements from the Secretary of State needs to be made and why these standards need to be underpinned as we go forward.

[Lord Garnier (Con)]

What else does the noble Lord have in mind in proposed new subsection (5B) when he uses the expression,

“but are not limited to”?

[Lord Purvis of Tweed]

As the noble Lord will know, we have engaged in a number of legislative standards across all the different aspects of the British economy. If they are not captured in proposed new paragraphs (a) to (g), which we believe to be comprehensive, and if there are some elements of the economy where legislative standards currently exist and we would consider them to be of equal status, there is a requirement for them to be protected. That is why these are baseline standards. If areas are excluded, they will be captured by “not limited to”. The list of standards is not necessarily designed to be open-ended; these are meant to be the existing legislative standards that are already on the statute book that we wish not to be impacted by any of the regulations that could be made through this legislation.

--- Later in debate ---

[Lord Judge]

My Lords, this amendment has very little to do with trade as such, but it raises a constitutional issue. If you looked at those supporting me on this amendment, you might even think that this is a bit of a geeky constitutional issue. It is not. All three of us are members of the Constitution Committee. We speak on our own behalf but feel it essential to draw the attention of the House to what we believe to be a total misunderstanding of the purposes of Explanatory Notes.

The misunderstanding arises in this way. Under the Bill, Clause 2(5) provides the regulation-making powers that may—forgive me for underlining this—among other things, “make provision”. Then there are paragraphs (a), (b), (c) and (d); paragraph (d) is about the penalties. We also looked at the Explanatory Notes. I wonder how many of your Lordships have recently looked at the front page of Explanatory Notes any Bill. I will read parts of them:

“These Explanatory Notes have been prepared by the Department … in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament”.


I do not suppose that a single Member of the House is surprised by that because, constitutionally, it is impeccable. The Explanatory Notes do not form part of whatever legislation may at some future date be enacted by Parliament.

Faced with the wide-ranging regulation-making power, and that assertion in the Explanatory Notes, can we look at the Explanatory Notes themselves? Paragraph 59 —I will not read the first part—in unequivocal terms says that:

“Subsection (5) does not allow for regulations to make or extend criminal offences, charge fees, amend primary legislation other than retained EU law, or create new public bodies”.


The Constitution Committee produced a report on this that expressed some concerns. Noble Lords may remember that in the EU withdrawal Act there was an absence of safeguards, but eventually—through the efforts of Members of this House—safeguards were put into it that prevented the use of delegated powers to impose or increase taxation and fees, to create a relevant criminal offence, or to establish a public authority. That was the step. The Constitution Committee then looked at the provision in relation to subsection (5), to which I have referred. The committee noted that the Explanatory Notes contained the assertion that the Government were not interested in the worrying provision for creating criminal offences and the like, but that this was not stated in the Bill. The committee then pointed out what subsection (5) extends to and recommended that the Government introduce an amendment to include in the Bill the restrictions on the use of the Clause 2 powers set out in the Explanatory Notes. That is what this amendment is designed to achieve.

There is something rather strange about this. You win some, you lose some. If you lose, you come to the House to ask the House to look at it. In a sense, that is what I should do. However, a more important issue has arisen in relation to the response of the Minister, who in effect is saying, “Look, there is nothing to worry about—what are you getting so concerned about? Just read the Explanatory Notes. That is all you need”. Lest you think that I am exaggerating, let me read the words:

“we believe that the explanatory notes to the Bill, which explain the purpose of the provisions contained in the legislation, is the most suitable document to outline the restrictions to the use of the clause 2 power”.

In other words, the issues which were raised as being of concern to the Constitution Committee, and which were referred to in the Explanatory Notes showing that the Government did not wish to have the powers that would have been troublesome, were simply to be found by looking at the Explanatory Notes. That is a troublesome approach to these issues. As I am aware, it is new: “Look at what the regulations do not contain and you’ll find that in the Explanatory Notes”. It seems a rather strange way of going about legislation.

The letter from the Minister was followed by a reference to an observation by a former Law Lord—who sadly is no longer with us, the highly respected Lord Steyn—based on a decision of the House of Lords called Pepper v Hart in which it is said that he allowed for the possibility of looking at Explanatory Notes in exceptional circumstances. I would argue that that was not as an aid to construction but in effect to say, “If the Executive have said this, you can draw that to our attention while we resolve the issue”.

Pepper v Hart is a troublesome case. Perhaps I may summarise what it is meant to mean in the following way—hopelessly inadequately in view of the presence of some noble and learned Lords here. It means that you can look at what has gone on in the House if the legislation itself is unintelligible. Legislation should not be unintelligible; it should be intelligible. At this stage when we are looking at this legislation, if it is not, we should make it so.

On how far Lord Steyn went about allowing for examination of Explanatory Notes, if it offered a diminution of the principle that Explanatory Notes are not, never were meant to and never should be treated as a legislative provision, I say with great respect to Lord Steyn that I think he got it wrong. I do not believe that that was what he was saying, but if he did it is wrong. We surely must not countenance the arrival of a pernicious new form of legislation, the Explanatory Note. We have enough trouble with guidance. Guidance is a seriously problematic source; it sort of hands over power to the Executive, but at least when we do that we have listened to the debate, have decided that that is the right way to approach the problem and have legislated accordingly. In relation to Explanatory Notes, there has never been a debate; there has never been anything. This comes from the department. The department tells us what the department thinks it wants. It cannot possibly be a guide to what we in this House or in the other place decide that the legislation should be. But we will now look at the department’s own Explanatory Notes to decide whether a provision which is an important safeguard against regulations creating criminal offences, imposing fees, amending primary legislation or creating new public bodies should be found. It is a constitutional absurdity. I beg to move.

[Lord Garnier]

My Lords, if the noble and learned Lord, Lord Judge, thought that his thinking was inadequate compared to that of Lord Steyn, it is the only inadequate thing that he just said. I rise briefly to encourage him in his arguments and to encourage the Government to understand that it is not only on the Cross Benches and on the Liberal Democrat Benches that the concerns that he has expressed can be found.

I want to look at Clause 2 through the lens of Amendment 3A, because it gives both United Kingdom Ministers and devolved Administration Ministers the power to make regulations that make provision among other things to modify primary legislation and impose penalties, as the noble and learned Lord, Lord Judge, pointed out.

--- Later in debate ---

[Baroness Fairhead]

I am happy to confirm that that is the case.

[Lord Garnier]

Can I press my noble friend a little further? Why does she not simply arrange for Amendment 3A to be included in the Bill?

[Baroness Fairhead]

My Lords, there is a genuine difference of legal opinion here. My proposal is that we reflect on this and have a meeting, if your Lordships are content to do that, because we have to work through this.