European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Brown of Eaton-under-Heywood

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

[Lord Brown of Eaton-under-Heywood (CB)]

I intervene to ask the Minister whether he agrees with this. Although —and I support the amendment—it is right to say that “necessary” involves a degree of objectivity, the clause would actually be applied in court on any challenge, and it would be a judicial review challenge to the making of regulation, on the basis that it is, in the reasonable opinion of the Minister, necessary. That is how the clause as amended would be applied on a challenge in court. Would he agree?

[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.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Brown of Eaton-under-Heywood

Wednesday 21st March 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I entirely agree with the noble and learned Lord, Lord Mackay of Clashfern, that one way or another it must be for Parliament to decide the essential ground rules that should apply in the future categorisation of retained EU law, certainly under Clauses 3 and 4, although perhaps not under Clause 2 as it is already domestic law. As I made plain some weeks ago—it seems like months—in an earlier debate, I do not, however, subscribe to the view of the Constitution Committee that all retained EU law should be designated as primary legislation. We discussed all this at the time. If what I may call in shorthand Professor Paul Craig’s suggested solution to this problem is adopted by following the EU’s own categorisation, under both the pre-Lisbon and post-Lisbon arrangements, somebody will have to apply that ground rule to this mass of 10,000, 20,000 or 30,000 instruments—however many they may be.

I suggested in an earlier debate, because this is what Paul Craig had said, that in fact four competent EU lawyers could carry out that whole process in a matter of three days. I may have those figures slightly wrong, but that is about it. But if that is left to be done after the passage of this legislation, some regulating power will have to be available to government to give effect to that process. The ground rules settled its application for regulation. I hold no particular brief for this being done under Clause 17(1); it may be that the better course would be to introduce the ground rules—as I say, Parliament’s specification of how basically the process is to be completed—within the legislation, and have a regulation-making power attached to that for the sole purpose of applying the ground rules. But I would not wish to leave unchallenged the Constitution Committee’s suggestion that the whole shooting match should be primary legislation.

[Lord Goldsmith]

My Lords, to some extent this is a continuation not just of the previous debate today but of previous debates that we have had on earlier days in Committee. That leads me to two observations, before I come to specifics on the amendment. One is on the very pertinent observation of the noble Lord, Lord Wallace of Saltaire, that if we do not advance at all before we get to Report we will have just as much time spent on Report as in Committee. Therefore, we very much hope that the Government respond to his suggestion or injunction to the Minister that we have some greater clarity on what the Government are going to do as a result of the consideration that they have been having for the last few days, when they have had time to consider some of these points. Indeed, I hope that it is not only the noble and learned Lord who is working on this—there are a lot more people in government who should and could be working on it. That is just one observation that demonstrates how much work there is to do, and how we need to move forward, hoping of course to do that in co-operation with the Government.

Secondly, I suppose people outside listening to this debate will wonder what on earth we are talking about. They expect that this Bill is about in or out and when and what the terms are, and the customs union. Those are important issues, too, but this debate illustrates how important some of the provisions in this Bill are. The question of whether something is to be regarded as a piece of primary legislation is fundamentally important; it has consequences for who legislates and how easy it is to amend that legislation, as well as for its effect in relation to other statutes. I draw this as a general view that has been expressed around the House, that it cannot be left simply for a Minister to decide. In previous debates, we have heard how many Ministers that could be. I made the observation—no one has yet contradicted it, although maybe it should be contradicted—that when you say that a Minister does something, under the Karl Turner principle that means that a civil servant can do it. I have the greatest of admiration for civil servants, but that would multiply the number very considerably. If we are talking about important constitutional provisions, about protection of rights and all the other things that the Bill is concerned with, it is not appropriate that decisions on who makes that decision should be left in this way.

I thank the noble Lord, Lord Pannick, for drawing attention to the fact, as others have too, that one consequence of this particular provision that my noble friend Lord Bassam of Brighton has dealt with touches on the question of who decides whether something is primary or secondary. The noble and learned Lord, Lord Mackay of Clashfern, made a very important observation, and so did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. Today is not the day to decide which should be primary; what we are talking about is whether it should be simply for a Minister or for his officials to determine whether a particular piece of law should be treated as primary or secondary legislation. That is what the amendment raises, and it is important that we should have clarity on it, I hope before we get to Report.

The summary that is given in paragraph 69 of the Constitution Committee’s report, already referred to by the noble Lord, Lord Pannick, puts it in clear terms, including the last sentence that, as it stands:

“This is a recipe for confusion and legal uncertainty”.


We cannot afford this Bill, when it has completed its passage through this House and the other place, to leave the country in a state of confusion and legal uncertainty.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Brown of Eaton-under-Heywood

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Goldsmith]

They were, because the charter provided for them. The Human Rights Act incorporated one set of provisions only, the European Convention on Human Rights, which goes back to just after the Second World War and which provides the classic political and civil rights. The other rights that we find in the charter, which is a much longer document and refers to socioeconomic rights, were not included in the Human Rights Act because they were not included in the European Convention on Human Rights.

The right-by-right analysis demonstrates which of these rights are not included. Given that the Government’s objective, as stated by the Prime Minister, is to ensure that the protections for people in this country are the same the day after exit as the day before, I respectfully suggest that it is not for me to identify why that is not right; it is for the Government to demonstrate why it is. When we have substantial independent bodies such as the Bingham Centre and independent opinions from QCs demonstrating that actually it is not the case that the protections remain the same, the Government need to explain. I shall come on to that further.

Obviously there are examples of rights in the charter that reflect precisely other rights that we have within our law. In particular, there are a number of rights in the charter that are explicitly based on the European Convention on Human Rights; they are the same. Indeed, during the negotiations I went to some pains to try to ensure that they were phrased in the same way so as to prevent lawyers from saying, “It’s written differently so it must mean something different”. However, those are not the only rights that are there. As I noted at Second Reading, the charter is based not just on the European Convention on Human Rights but on principles of EU law and on principles that are commonly accepted by the member states, and those are in a different position from the ECHR rights.

[Lord Brown of Eaton-under-Heywood (CB)]

Just take one of the rights that is precisely mirrored in the convention. Is it suggested that henceforth, the wise complainant who faces primary legislation here which is incompatible with that right should therefore sue under both the charter and the convention because, lo and behold, under the convention, despite the constitutional arrangement whereby the court’s powers are limited to a declaration of incompatibility, he can disapply the primary legislation? Is that to be the consequence: that in a case where it matches, the convention trumps the constitutional settlement we arrived at, to which the noble Baroness, Lady Deech, referred?

[Lord Goldsmith]

That will depend on the shape of the Bill when it is completed—in particular, what is said about the provisions which deal with primacy of EU law—but at the moment, as the noble and learned Lord will know well from the cases he sat on, people have been bringing cases by reference to both the charter and the convention. One reason for that is that the protection under the charter is more powerful. In future, if people want protection of human rights, they will want the more powerful protection, and if that remains available after the Bill is enacted, they will look to it.

--- Later in debate ---

[Lord Brown of Eaton-under-Heywood]

I promise that I will not intervene again—I loathe intervening. But does the noble and learned Lord agree, although he proposes the domestication of the charter, it will still be necessary in future to decide what is within the ambit of what used to be EU law, because that is where the operation of the charter is presently confined—or does he suggest that now it opens up and encompasses all UK law, so that it is a wider application than it was originally? Are we going to have to go again through the impossible exercise, notoriously uncertain in application, of having to decide what is specifically and directly within the ambit of EU law in future as well?

[Lord Goldsmith]

I am grateful to the noble and learned Lord and I know that this is a point that troubles him, but he should bear in mind that what we have in Clauses 2, 3 and 4 of the Bill are provisions to bring specific aspects of EU derived legislation and EU direct effect legislation into UK law. That is the Union law that will continue, and that is what is defined as retained EU law—and it is to that retained EU law that the charter will continue to have effect under the scheme that I advocate to your Lordships, not to anything else or more broadly UK law.

[Lord Brown of Eaton-under-Heywood]

So the right to dignity would exist in the context of EU law, but not otherwise? Is that really how it is intended to work? Can the noble and learned Lord give an illustration of a case that will succeed under the right to human dignity in future—I mean, there has not ever been one in the past that has succeeded under that—when otherwise it would fail?

[Lord Goldsmith]

The noble and learned Lord knows that I took Article 1 as an example only because it is the very first article in the charter. I have respectfully invited noble Lords to look at the Joint Committee on Human Rights report, where the committee goes through each of the articles and through what the Government have said in relation to them, and identifies where they find place already in existing, enforceable UK law, and where they do not. It is where they do not that we are concerned with, and where they do not that there will be the very gap that the Prime Minister has said should not exist.

There is the further problem that, even if the rights survive, they will survive without the enhanced status and protection that they currently have. They have an enhanced status at the moment because of the 1972 Act and because of EU membership, but from the date of this Act they will only survive in a delegated form and be amendable by delegated legislation. They are not protected from being amended or removed by delegated legislation.

Compare the position in relation to the ECHR and the Human Rights Act. The Bill says in three places—in Clauses 7(7)(e), 8(3)(d) and 9(3)(d)—that the Human Rights Act is protected from amendment or revocation. The classic civil and political rights, but no more, which are, rightly, protected by the HRA, are protected from being amended other than by primary legislation to which this House and the other place have specifically agreed after proper scrutiny. However, none of the rights underlying the charter will be protected in that way, unless they find themselves within the ECHR, which is only some of them. That is unacceptable for many people.