European Union (Withdrawal Agreement) Bill

Lord Goldsmith Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Carlile of Berriew]

My Lords, there are a few countries in the European Union, all in central Europe, where the independence of the judiciary has been under attack for the past two to three years, as is evidentially measurable. We in the United Kingdom, of all political persuasions and none, have repeatedly condemned what has happened in those countries. My understanding was that one of the reasons put forward for leaving the European Union was that we could revert to our own best traditions of the law, with judicial independence, with the rule of law guaranteed by it and with the separation of powers intact.

I am not one who subscribes to the view held by some that the present Government wish to undermine the independence of the judiciary. It would be inconsistent with the basic views they expressed in relation to leaving the European Union. However, if one reads Clause 26 carefully, one sees that, textually, it raises the possibility of the independence of the judiciary being interfered with politically. That is not acceptable, and I do not believe that in their heart of hearts—if they have a heart or a heart of hearts—the Government wished to achieve that end.

My legal practice, lasting the best part of 50 years, has, I confess, been less esoteric and possibly more worldly than those of some other noble Lords and noble and learned Lords in this House, especially those sitting on these Cross Benches. However, my years as a practitioner, both as an advocate and as a part-time judge, have led me to magistrates’ courts all over the place, to county courts in parts of Wales whose names some of your Lordships would struggle to pronounce and to Crown Courts all over the country, including London. I have sat in some of those courts. Frankly, it fills me with concern that the Government would be able to determine by statutory instrument or ministerial fiat which of that huge number of courts would be able to make the determinations under discussion.

The proposal in Clause 26 undermines the consistency of decision-making and the importance of precedent—the principle of stare decisis—which have enabled barristers in ordinary courts around the country to know what the law is on sometimes very complicated issues and therefore to be able to make submissions to judges, who also know what the law is. What is proposed will remove that consistency and undermine the importance of precedent unless the decision-making on these issues is limited to a number of courts which are genuinely regarded as binding by the other courts; that is, as courts of record. If we are given the opportunity, my preference is that we should vote for the amendment proposed so brilliantly by the noble and learned Lord, Lord Mackay of Clashfern, and that the Government should then have the opportunity to amend that amendment before it comes back to your Lordships’ House to include, as the noble and learned Lord suggested, the Court of Appeal and its equivalent in Scotland. I suggest to your Lordships that this is realistic, it is practical, it is certain, and it is probably what the Conservative Party really meant anyway before it was maybe trapped into a little bit of rhetoric which has gone wrong.

[Lord Goldsmith (Lab)]

My Lords, I did not have the privilege of attending the House when Committee took place, but I have read every word of the debate on this clause. It is so powerful to see, I think, three former Lord Chief Justices, a former Lord Chancellor, a former Law Lord, the chairman of our Constitution Committee and other distinguished people speak perhaps not unanimously as to the right outcome but certainly unanimously condemning what the Government seek to do. We have heard it again today; I fully agree with what was said by the noble Lord, Lord Pannick, by my noble friend Lord Howarth and, of course, by the noble and learned Lord, Lord Mackay of Clashfern.

European Union (Withdrawal Agreement) Bill

Lord Goldsmith Excerpts

Report: 2nd sitting (Hansard - continued) & Report stage & Report: 2nd sitting (Hansard - continued): House of Lords
Tuesday 21st January 2020 Lords Chamber

Moved by

[Lord Goldsmith]

19: After Clause 37, insert the following new Clause—
“Non-regression of EU-derived rights and protections
After section 16 (maintenance of environmental principles etc.) of the European Union (Withdrawal) Act 2018 insert—16A Non-regression in relation to protected matters(1) Any action taken by or on behalf of a Minister of the Crown under—(a) this Act, or(b) any other enactment, for the purposes of or in connection with the withdrawal of the United Kingdom from the EU,is unlawful if it is intended to have, or in practice is reasonably likely to have, a regressive effect in relation to the protected matters.(2) A public authority exercising a function in respect of a protected matter must not exercise that function in a way that is intended to have, or is reasonably likely to have, a regressive effect.(3) Regulations may not be made under this Act if they are intended to have, or are reasonably likely to have, a regressive effect.(4) The protected matters are—(a) animal welfare,(b) biodiversity and the environment,(c) chemical safety,(d) data protection,(e) disability access,(f) employment and social rights,(g) food safety,(h) public health, and (i) transport safety.(5) For the purposes of this section an effect shall be considered regressive if it—(a) reduces a minimum technical standard or level of protection provided for in retained EU law, or(b) weakens governance processes associated with that standard or protection.””Member’s explanatory statement
This amendment prevents Ministers from using powers relating to EU withdrawal to diminish standards or protections in retained EU law relating to a series of ‘protected matters’.

[Lord Goldsmith (Lab)]

My Lords, Amendment 19 is in the name of my noble friend Lady Hayter of Kentish Town. One of the key issues in our debates has been the extent to which the United Kingdom will continue to safeguard the protections of certain rights that derive from EU law. The previous Bill, and assurances by the Government, indicated that protections would remain. The Government have repeatedly stated that, while they do not intend to undercut EU regulations, they want to retain the option of divergence and will therefore now refuse to sign up to level playing field provisions in a free trade agreement. It is time to know, if we can, what that actually means and just what the Government intend.

Just last Friday, the Chancellor, Sajid Javid, told the Financial Times that Britain would never accept ongoing regulatory alignment with Brussels. Ministers are arguing that it is not necessary to sign up to minimum standards, because in most cases the UK already exceeds what is required by EU directives or regulations, but we all know that that is not true in all areas.

The Government are telling us to trust them, even though they stripped out their previous commitments on workers’ rights and parliamentary oversight. As we saw in Committee, they cannot yet define the future relationship they want with a range of the EU’s executive agencies. We have, of course, been promised a ground-breaking new employment Bill, but Ministers will not tell us what its contents will be or set the timescales. We are not certain what engagement has taken place with trade unions and, while there is a need to regulate the gig economy, we need to be certain that this will not water down protections for other workers.

Yesterday, the European Commission briefed EU 27 diplomats on its preparations for the next round of Brexit negotiations. The presentation suggested that the EU will continue to advocate level playing field measures, with future co-operation to be underpinned by a single set of strong enforcement rules. It has been suggested that if the UK breaches any of its commitments under the future trade agreement, it could be fined or lose its preferential access to certain sectors. In response to the comments made by Mr Javid last week, one EU diplomat is quoted as saying:

“In the end it is all rather simple: If Britain wants to diverge from EU rules, it will diverge. Such an approach would obviously lead to new trade hurdles between Britain and the EU and in consequence less trade, less investment, less jobs.”


The Government need to be clear about their intentions. If they want a Canada-style deal, they should be honest with the public about the limitations of that approach. If they want Canada-plus-plus-plus or similar, and the economic and security benefits that a closer relationship would bring, Ministers need to be honest with the public that this will require a greater degree of alignment.

As we know, time is tight. The EU has been clear that it will not even adopt its negotiating mandate until the UK has departed at the end of this month. There needs to be sufficient time left for the ratification of any agreements by national and regional parliaments across the continent. My party has always been clear that it wants a close economic relationship with the EU and that regulatory alignment is not only a price worth paying but would bring benefits to UK citizens. The Government might disagree but, having won the election by promising to get Brexit done, they must now get on with the job of telling people what post-Brexit Britain will actually look like. The purpose of this amendment is to set out the protections that we believe ought to be continued. I look forward to hearing what the Minister has to say about the extent to which assurance will be given on to those protections. For those reasons, I beg to move.

[Lord Fox (LD)]

My Lords, I support this amendment and associate myself fully with the words of the noble and learned Lord, Lord Goldsmith. As such, I can be brief.

Until last weekend, the Government had resolutely maintained a twin-track narrative. Yes, they said, we will have an independent trading policy; yes, they said, we will have frictionless trading with the European Union. Many of us in Committee tried to point out that these would, in effect, be mutually exclusive, and at the heart of this were regulatory standards. Many of us tried to explain that for frictionless trade to take place, a level playing field with the EU 27 means just that: a level playing field with no divergence. The Minister, at his obdurate best, shrugged off those Committee- stage comments.

As the noble and learned Lord, Lord Goldsmith, outlined, the Chancellor, Sajid Javid, broke cover in his interview with the Financial Times at the weekend. He quashed any prospect of the Treasury lending its support to our country’s leading manufacturing sectors. He was very clear, saying:

“There will not be alignment”


and he urged companies to adjust to the new reality, for our automotive, aerospace, pharmaceutical, chemical and food and drink industries, all of which have been clear on the vital need for alignment with EU regulations. Mr Javid added

“we will do this by the end of the year”

which is not long to wait.

Therefore, at least one member of the Government has told the truth and told us where the Government are headed. However, it is simply amazing that any Administration, never mind a Conservative one, should turn their back on these important providers of jobs and prosperity. This amendment would prevent Ministers using regulation-making powers under the Bill to diminish standards or protections related to series of protected matters. That sounds very dry and cold, but those protected matters, specified in the amendment, affect everyone. They include the environment, employment, social rights, animal welfare and public health—really important aspects of the everyday lives of people in this country.

The amendment, so ably moved by the noble and learned Lord, Lord Goldsmith, in essence sets out in writing the aspirations that the political agreement purported to set out. We now know that those aspirations have come to naught. Will the Minister tell us where the Government are headed and what will happen to standards?

--- Later in debate ---

[Lord Callanan]

If it becomes part of retained EU law before the end of the implementation period, it will be transferred into British law by snapshotting the procedure. I do not know the details of that directive, so I undertake to write to the noble Baroness about it.

[Lord Goldsmith]

I thank the Minister for his reply and thank all noble Lords who have taken part in this debate, particularly those—and it is the majority—who supported this amendment. I will just clear one or two matters out the way, from what the Minister said. The first is on the scope of the Bill. There was no problem including protections of this sort in the Bill before the election. It has been revised now, but I do not follow that point.

Secondly, he sees imperfections in the Bill. I have been in government too, and we always have the ability to improve amendments that have been tabled, the substance of which we agree with, to cure that problem. That is not the reason the Government are resisting this amendment. We all know that. The Government are resisting this amendment because they do not want, despite what has been said before, to be committed to non-regression. The point is about non-regression; the clue is in the title. It is about standards being lowered. Of course, they can be improved or changed, as long as, under this amendment, they are not reduced. That is the concern. For some reason—it appears to be ideological purity—the Government are not prepared to give that guarantee.

I was taken by the vignette—the play—of my noble friend Lord Hendy. I have heard him in court before, but it was the first time I have heard him in Parliament. He was as persuasive here as he is in court. But ideological purity risks damaging this country and the people in it. The point made by the noble Lord, Lord Hannay, is that the Government’s insistence on this divergence has caused damage already. We have given the Government the opportunity to give assurances about this. Everyone will read what the noble Lord said in Hansard very closely. We have given them the opportunity to give stronger assurances to the outside world and the workers in it, and the invitation was not accepted. If, as many think, the result will be damage to the country and the people within it, and the rights that people believed were going to be protected, we know at whose door the fault will lie.

I will not press the amendment because there is no point in doing so with the position that the Government are in in the other place. It is clear that they will not accept this proposal or anything like it, but we will continue to hold them to their warm words and will carefully define and interpret them to see how far they go. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.