Trade Bill

Debate between Lord Hope of Craighead and Lord Beith

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

[Lord Hope of Craighead (CB)]

My Lords, we should be very grateful to the Constitution Committee for drawing our attention to this matter, which might otherwise not have been observed. I shall add just a few short points to those that have been made. The first is to stress the importance of the words in subsection (5), to which the noble and learned Lord, Lord Judge, drew our attention:

“Regulations under subsection (1) may, among other things, make provision—”.


It is the words “among other things” that cause me concern. They appear in the Healthcare (International Arrangements) Bill as well: they seem to be a feature creeping in to this kind of legislation, which is quite disturbing. If we find that phrase, I suggest that we have to be even more exacting in setting out the qualifications to the power, otherwise the words “among other things” may be used to expand the power in a way that we have not foreseen. It is really very important, as the noble and learned Lord, Lord Judge, pointed out, that we take those words into account in what we make of this amendment.

My second point is to reinforce what the noble Lord, Lord Pannick, said about the comparison between Section 8 of the European Union (Withdrawal) Act 2018 and what we have now, in reply to the point that we do not need to be concerned about that, because express provision would be needed for a regulation that sought, for example, to create a criminal offence. These exceptions, or almost exactly the same ones, are expressly set out in Section 8(7) as,

“regulations … may not … impose or increase taxation or fees … create a relevant criminal offence … establish a public authority”.

If it was thought appropriate to put those qualifications in that very important subsection, which does not contain the words “among other things”, I should have thought it was all the more important to have them here.

My last point is made with reference to the point made about Lord Steyn’s use of Explanatory Notes. I had the privilege of sitting with Lord Steyn for a number of years and of discussing with him how Explanatory Notes might be used. I do not think that at any point in our discussion he suggested to me that Explanatory Notes could be regarded as a form of legislation or its equivalent—certainly not. He was referring to them as a means of understanding ambiguities in legislation; he thought that one could look to the Explanatory Notes to understand the legislation one was seeking to explain. That was his point, and it was made in a number of cases where I agreed with him. It would be a mistake to think that he was embarking on something outside the normal use of Explanatory Notes, which is to explain but not to legislate. For these reasons and the others mentioned, I warmly support the amendment that the noble and learned Lord has brought to our attention.

[Lord Beith (LD)]

My Lords, I do not need to add to the masterful laying out of the reasons for the amendment by the noble and learned Lord, Lord Judge, or to what was said by the two Members who have just spoken—particularly the noble and learned Lord, Lord Hope. But I will refer to the consequence of going about the matter in this way. Lord Steyn’s judgment does not place any obligation on the courts to have a habit or practice of referring to Explanatory Notes—it is entirely up to the courts whether they choose to do so—but, if the Government persist in this interpretation, which appeared to us for the first time in a letter from the noble Baroness, it says to parliamentary draftsmen and departments, “Don’t worry about ambiguity; there are the Explanatory Notes and we do not have to get those through either House”. It is an invitation to careless and sloppy drafting; it is an invitation to leaving open a possibility that the Government may not want to specify at this stage, but might be useful at a later date, when the Explanatory Notes would be relied on for a purpose that I do not think Lord Steyn intended. I was quite shocked to find this interpretation of Pepper v Hart coming into the Government’s responses to the Constitution Committee. We need to squash it pretty quickly, before it influences the habits of departments and parliamentary draftsmen any further.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Debate between Lord Hope of Craighead and Lord Beith

Tuesday 29th January 2019 Grand Committee

[Lord Hope of Craighead]

Thank you. The Justice Sub-Committee prepared a detailed report drawing attention to exactly what the noble Lord has referred to. There was an impassioned debate—I do not know whether the noble Lord was present—at which these points were made. The criticism is not against us, as it were, because in this House we have been taking our responsibilities seriously. However, I understand the point the noble Lord makes about the effect of leaving the EU and the distress he feels.

[Lord Beith]

There is one thing the Government have not made clear. The impact statement, brief as it is, is structured around there being two options—the other option being not to change retained EU law. As I understood it, that option implied that in a no-deal situation, if we did not have this instrument, the courts would be left behaving as they had previously and hoping that courts in other countries would do the same. One of the things that was not explained very well in the impact statement—perhaps the Minister can clarify this later—is what the other option the Government rejected was.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Beith

Committee: 7th sitting (Hansard - continued): House of Lords
Wednesday 14th March 2018 Lords Chamber

[Lord Hope of Craighead (CB)]

There is a good deal to be said for the amendment moved by the noble Lord, Lord Sharkey, when one bears in mind the power given in each of Clauses 7, 8 and 9 to make any provision that could be made by an Act of Parliament under regulations made under these clauses. Of course, one can look back to an existing Act, which could be amended by the exercise of this power, for a purpose related to the Brexit arrangements. If one takes an existing Act—one can visualise all sorts of situations when that might arise—it would seem right that the same procedure should apply if the amendment is made for the purposes which one sees in Clauses 7, 8 and 9.

For future Acts I can see there is a problem, because one cannot control a future Parliament, but as far as the past is concerned I respectfully suggest that there is a lot to be said for the amendment.

[Lord Beith (LD)]

My Lords, I am sorry I missed the beginning of the speech of my noble friend Lord Sharkey as a result of unaccustomed speed breaking out on the Bill’s proceedings while I was having a cup of tea. Whether this will be repeated, I do not know.

I had discussions before with my noble friend to properly understand his amendment and its main aim, which is to embrace, within scrutiny procedures used for withdrawal Bill statutory instruments, all those statutory instruments for the same purpose that derive from other previous statutes. That is an interesting idea. When it comes to referring back to the Statutory Instruments Act 1946, it is worth recalling that the Act was surrounded by generous commitments, promises that prayers against negative instruments would always have time for debate on the Floor of the House and all sorts of undertakings that were completely unfulfilled in practice.

Whether the amendment can be made to work in precisely this form I am not quite sure, but I think that the purpose of ensuring that nothing is slipped through by anything less than at least the procedure of triage and scrutiny that we seek for statutory instruments under this Bill—if it becomes an Act—is extended to anything that does the same thing. We certainly would not want to create a perverse incentive for a Government to use the wrong legislation, or a different piece of legislation, for the statutory instrument simply because they could evade a form of scrutiny by doing so.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Beith

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

[Lord Beith (LD)]

My Lords, if the noble Lord, Lord Adonis, is wondering why the word “appropriate” does not fit into the context of trying to limit judicial discretion, he should look at how many times it is used in this and other Bills to give Ministers the opportunity to decide one way or the other, in what are quite clearly different kinds of decisions from those you would expect judges to make.

[Lord Hope of Craighead]

My Lords, with respect to the noble Lord, Lord Adonis, what the noble Lord, Lord Pannick said in reply is in my experience absolutely right. To a judge, the word “relevant” requires him to look at the issues that need to be decided. It is a much tighter word than “appropriate”, and is used frequently. In case law, one searches for the point that is directly relevant to the point at issue. It may be that legal terminology is best adopted because that is what judges understand. It is a different kind of word from “appropriate”, which judges do not normally use. Therefore, I suggest it is a better word to use in this context.