European Union (Withdrawal) (No. 5) Bill

Debate between Lord Goldsmith and Lord Pannick

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Lord Pannick]

This is a negotiation. It would be very odd to say that she can agree a date but she cannot seek one. There has to be give and take. I think that there is general agreement around the House that the Bill, whether noble Lords are in favour of it or not, ought not to constrain the Prime Minister’s powers when she is conducting an international negotiation.

The noble Lord, Lord Faulks, asked whether this was really necessary: unless an Act of Parliament expressly takes away the Prime Minister’s prerogative powers, surely they remain. My answer is that there is a danger that it might be said that the Bill, by necessary implication by reason of its contents, takes away the Prime Minister’s prerogative powers. I think we would all agree that the worst of all possible worlds would be if the noble Lord, Lord Faulks, on Thursday morning was to be instructed by a client to go to court to obtain a declaration that the Prime Minister has acted in breach of her powers, given the Bill’s contents.

[Lord Goldsmith]

If I may assist, Clause 1(4) would require the Prime Minister to seek an extension of the period required by the House of Commons. We are then dealing with what happens after that.

[Lord Pannick]

I entirely accept that.

It is necessary to have legal certainty on the retention of the Prime Minister’s powers on such an important matter. That is why the noble and learned Lords, Lord Judge and Lord Goldsmith, the noble Baroness, Lady Ludford, and I have all put our names to Amendment 7.

--- Later in debate ---

[Lord Goldsmith]

The noble Lord should know that on any amendment or Bill in this House, the Government and the official Opposition will have a view, and we seek to help noble Lords by providing that view. That is exactly what is happening here.

[Lord Pannick]

I am not responsible for the Bill, but I offer a further argument in favour of retaining Clause 2. The practical reality is that, on Wednesday night, the Prime Minister will be offered a deal by the European Council. She will either accept it or not. The overwhelming probability is that she will come to some agreement with the European Council.

If the matter comes back on an affirmative resolution before the House of Commons and this House on Thursday or Friday, there will be only two choices: either we accept the date that has been agreed or we leave on Friday at 11 pm. The House of Commons has overwhelmingly voted that it does not wish to leave with no deal, and the view of this House is perfectly clear that it does not want to leave with no deal. Therefore, it seems to me that, in the extraordinary circumstances in which we now find ourselves, Clause 2 is entirely acceptable.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Pannick

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Pannick]

I am very grateful to the Minister for that encouraging response, and I am grateful to the noble Lords and noble and learned Lords who have spoken in this debate.

On a matter of detail, the noble Lord, Lord Adonis, asked about new subsection (2B) in Amendment 56, giving guidance to the judges to look to the relevance of an EU agreement. The noble Lord asked how that would work. I shall give him an example. If the judge is seeking to interpret a provision of retained EU law, relating to, say, medicinal products; if the Court of Justice after exit day pronounces on a regulation which has become part of retained EU law, and if the withdrawal agreement has said that there will be close regulatory alignment between the EU and the United Kingdom in that particular area, then the judge would be encouraged to pay close regard to what the Court of Justice had said about the meaning of the regulation. Our court would still be in control but it would pay particular regard—that is the whole point of new subsection (2B).

There is widespread agreement around the House that the wording of Clause 6(2) is unsatisfactory and that Parliament needs to give as much guidance as possible to judges in this context to protect them from being seen to be required to take policy decisions, which would undermine confidence in the rule of law. The Government and Parliament would be very unwise to reject, in particular, the concerns expressed by the noble and learned Lord, Lord Neuberger of Abbotsbury. It is much more difficult to identify precisely what should be put in place of Clause 6(2). I am encouraged by what the Minister said—that the Government are listening and considering this matter. I am sure that all noble Lords who have spoken would be happy to contribute to the discussions that will take place before Report. I hope that, on Report, the Government will bring forward amendments to Clause 6(2).

[Lord Goldsmith]

Before the noble Lord withdraws his amendment, as I suspect he is going to do, can I ask him to clarify one point? He talked a moment ago about the need to protect the judges. Would he agree that it is a question not of protecting the judges from attack, but of protecting the independence of the judiciary and the rule of law?

[Lord Pannick]

I entirely agree with the noble and learned Lord. I think I said in opening this debate that it is not that the judges cannot withstand criticism of their judgments, it is rather that we are all concerned about confidence in the rule of law. As the noble and learned Lord said, if the judges are left to take policy decisions in a very sensitive context, where a decision will have to be made as to the weight—if any—to give to Court of Justice judgments handed down after Brexit, there is no doubt that they will be exposed. They will be the subject of criticism which will undermine the rule of law unless we do our job and give very clear guidance on what Parliament thinks should be the appropriate approach.

I beg leave to withdraw the amendment.

European Union (Withdrawal) Bill

Debate between Lord Goldsmith and Lord Pannick

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

[Lord Pannick]

The noble and learned Lord is absolutely right. If retained EU law were to be categorised as primary legislation, such challenges could not be brought. But the Minister resisted that suggestion in our earlier debate. I am concerned with the Bill as it is at the moment. What is the Government’s intention in this respect?

[Lord Goldsmith (Lab)]

My Lords, that short exchange has demonstrated how complicated this area is and how important the general principles of EU law are in it. It is, perhaps, late at night to be discussing this but it is extremely important because of both the principles and the way they operate. If one looks at it in this way, and takes the Government’s intention not to take away rights as a part of this process, one has to recognise that the architecture which provides rights at the moment is quite complicated. As a commentator has said, there is no single, simple answer to restoring the position in the light of what the Government propose to do.

Amendment 41, which stands in my name, follows the principle the noble Baroness, Lady Bowles, initiated by saying that the general principles of EU law should continue to be capable of giving rise to rights which can be enforced by our courts. The point has already been made that there is a difference between these general rights existing as a way of interpreting other rights—as an interpretive technique—and giving rise to freestanding rights themselves. Paragraph 3 of Schedule 1 prevents any action being founded in contravention of one of the general principles or rendering any Executive act unlawful or disapplying any legislation, including secondary legislation, on the grounds that it offends these general principles.

The general principles of EU law have been critical to a number of legal decisions relating to people’s rights. One of those often cited is the case of John Walker, who brought a case for equal protection in pension rights for his same-sex partner, a claim upheld by the Supreme Court which recognised that prohibition of discrimination on the grounds of sexual orientation was a key principle of EU law. As I apprehend it, without that the case would not have succeeded.

The principle of effectiveness of remedies has also been relied upon. When the Supreme Court struck down employment tribunal fees that disproportionately affected disadvantaged women and low-paid workers, the principle of effectiveness of remedies was relied upon. Cases concerning caps on compensation and equal pay cases have depended upon the general principle that we find in the EU principles. The amendment standing in my name and that of the noble Baroness, Lady Bowles, seeks to enable those general principles to continue to have that effect in our law. It is important that they do for a couple of other reasons. Take, for example, something that was raised in the other place. What if there is a principle of EU retained law which is deficient, defective, does not operate properly or is disproportionate? Without being able to rely upon the general principles of EU law, it may be that all the court could do if faced with that would be to say that either that principle or that particular Act or that particular piece of law, though deficient or defective, has to continue to operate because there is no principle by which it can be struck down, and that would be a loss.

The other reason goes back, I am afraid, to the debate that we had last week on the charter and the Government’s assertion that the charter is not necessary because all the rights are otherwise protected under our law. Of course, at the time the charter was drawn up we were still a member and, in many people’s minds at least, were expected to continue to remain a member of the European Union with all that that implied, including the continued application of general principles. But if one looks—