European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak briefly to this amendment, to which I have added my name. There is little I can add to what the noble Lord, Lord Deben, and the noble Baroness, Lady Jones, said so eloquently. The current Clause 4 is unsuitable, so we have submitted a proposed new Clause 4, which covers a much broader area than the environmental concerns. However, because so much environmental legislation stems from the EU, it is particularly important for the Government’s environmental commitments that we carry these forward.

The amendment aims to preserve more comprehensively than the existing Clause 4 rights, powers, liabilities, obligations, restrictions, remedies and procedures, all derived from EU law and incorporated into domestic law via the ECA. Where such rights are incorrectly or incompletely transferred it imposes a duty to remedy this, and we feel that it is important that the Government take this duty on board. There will be transition gaps and incomplete transfers. Examples of transition gaps which put environmental protection at risk include, as the noble Baroness, Lady Jones, said, the requirement to review and report on adequacy and implementation of laws such as the air quality directive and the habitats directive. As the noble Lord, Lord Deben, said, if we are not doing this in the right way, will the Minister please tell us which way we should be doing it? I fully support this amendment and I will support the amendment that comes forward on Monday.

[Lord Goldsmith (Lab)]

My Lords, in supporting this amendment also, I start by just noting one thing we have learned during the passage of the Bill so far: how very complicated the process of exit will be. That is important, because, as the noble Lord, Lord Deben, rightly reminded us, the purpose of the Bill is to enable us to leave, but with the same rights and obligations, and the same protections, the day after exit as the day before. The Prime Minister made that promise very clear. This amendment would help to make sure that this promise can be kept. If one looks at the way the Bill currently deals with rights that are being passed over, one can see the complication in the provisions as drafted.

I will not repeat the arguments that were raised in Committee, nor indeed repeat those that have been so well made by my noble friends Lady Jones and Lord Puttnam and by the noble Baroness, Lady Bakewell. However, one thing is clear: if there is a defect in what the Government are doing and if the provision will not pass across into our law the day after exit those things it should, the amendment simply says that this is a mechanism by which they can be brought in. I think the Government would want to welcome that, because it means they could achieve what they want to achieve in what is, as I said, a complicated area in which it may be difficult to be sure that everything has been done as it should. Of course, if it is unnecessary because all the rights have been passed across, in those circumstances there will be no need for the clause to operate. However, it will be there to achieve what is required.

I will make one other point, because it may look to some slightly paradoxical to use a ministerial power of regulation to achieve this when so much concern has already been expressed in this House, and will be on amendments to come, about the overuse of delegated powers. This differs from the other powers that concern has been expressed about. It is not a discretion of the Minister to use the power but an obligation to do so if certain conditions are met: if in fact—and it is an objective fact which can be verified or not—retained EU law does not give effect to,

“rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day”.

Therefore, it makes sense to do that.

The noble Lord, Lord Deben, made the sensible suggestion that if this amendment does not quite do it the right way, the Government can and should come back with an alternative method at Third Reading. However, that they should do something to make sure this gap is plugged seems a strong and correct argument, and for that reason I support the amendment.

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Brown of Cambridge, in absentia for her Amendment 12 and to my noble friend Lord Deben for speaking to it on her behalf. I note that this amendment is very similar to an amendment tabled in Committee by the noble Lord, Lord Krebs, to which the noble Baroness was a signatory. As was the case with that amendment, Amendment 12 seeks to amend what EU law is retained through Clause 4.

As this House is aware, and has been said earlier within the debate, one part of EU law that the Bill does not convert into our domestic law is EU directives. The reason for this is clear. As EU directives as such are not a part of our domestic law now, it is the Government’s view that they should not be part of our domestic law after we leave the EU. Instead, the Bill, under Clause 2, is saving the domestic measures that implement the directives, so it is not necessary to convert the directives themselves. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease.

However, the Bill recognises one exception to this approach. Where, in a case decided or commenced before exit day, a domestic court or the European Court of Justice has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will retain the effect of that right, power, et cetera within UK law.

That seems to the Government to provide a clarity which it is important for this Bill to achieve, and it is why we believe that Clause 4 as currently worded strikes the right balance—ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty within our statute book about what will be retained in UK law at the point of exit.

I shall explain to my noble friend Lord Deben what we see as a difficulty. This certainty would be undermined by the amendment, placing both businesses and individuals in the difficult position where they are uncertain about whether the rights they rely on will change. It could also create practical difficulties for our courts following our exit. There could be new litigation about whether implementing legislation correctly or completely gave effect to a pre-exit directive, and whether Ministers had fulfilled the duty in the amendment’s proposed new subsection (3) to make implementing regulations. This could continue for years after our exit from the EU, effectively sustaining an ongoing, latent duty to implement aspects of EU legislation long after the UK had left the European Union.

I think it would be acknowledged that it would be strange for Ministers to be obligated to make regulations to comply with former international obligations which the UK is no longer bound by. Although Ministers might find that they were obliged to make regulations under the amendment, it would presumably still be open to Parliament to reject the instrument and either require it to be revoked or decline to approve it, depending on the procedure involved, yet the Minister would, under the terms of the amendment, remain under a legal obligation to make regulations. I think that this gets to the heart of the problem: how is that tension to be resolved?

Therefore, I say to my noble friend Lord Deben that, although I understand that the genuine intention behind the amendment is to give confidence and certainty, in practice I do not think that it would necessarily achieve this, and I respectfully suggest that the real consequence would be confusion.

Furthermore, the amendment specifically implies that the Government would have to undertake a thorough investigation, as soon as possible, of all the EU directives that have been domestically implemented over the course of this country’s 40-plus years of EU membership to ensure that they have correctly and completely implemented them all.