Brexit: Legislating for the United Kingdom’s Withdrawal from the European Union

Lord Howell of Guildford Excerpts

Thursday 30th March 2017 Lords Chamber

[Lord Bridges of Headley]

On a more serious note, as for the points made by the noble Baronesses about changes that might be made in years hence to EU-derived law once it is in UK law, that is some time off for the very simple reason that we have to get this process through and done in the time that we have. Any changes to EU-derived-law, if they were to be made—I should say more correctly “proposed”—would obviously need to be passed by this Parliament, but that is not for now. As this paper makes very clear, the task before us is to provide for a smooth and orderly exit on day one.

I want to pick up on a point made by the noble Baroness, Lady Ludford. I totally understand the concerns about people’s rights, but we are making it absolutely clear that we do not intend to undermine or erode people’s rights as they are derived from the EU. Furthermore, the noble Baroness suggested that this is a power grab. This is not a power grab. We make very clear in the paper the balance that we are striving to achieve between the need to get appropriate scrutiny from Parliament while, at the same time, having a fully functioning statute book on the day that we leave the EU.

From paragraph 3.16 onwards, we set out a number of constraints that might be taken. As I said in the Statement, we are committed to a time limit. The noble Baroness, Lady Hayter, made some very interesting suggestions about other constraints that are not in the White Paper as such. I draw the House’s attention to paragraph 3.17 on the scope of the power as it is currently considered and the potential that,

“we will consider the constraints placed on the delegated power in section 2 of the ECA to assess whether similar constraints may be suitable for the new power, for example preventing the power from being used to make retrospective provision or impose taxation”.

The noble Baroness made a number of other suggestions. She echoed the points made in the excellent report by this House’s Constitution Committee—and many thanks to those Members who contributed to it—on Explanatory Memorandums, which is a very interesting idea. She referred to consultation on drafts, which again is going to be very important as we move to implementing SIs that touch on sectors of the economy, a comprehensive delegated powers memorandum, which is worth mulling over, draft regulations, strengthened scrutiny procedure and finally triage. These are all thoughts that my door is open to have discussions on with any noble Lord who wishes to do so. I stress the point that is made in paragraph 3.23 of the White Paper:

“This White Paper is the beginning of a discussion between Government and Parliament as to the most pragmatic and effective approach to take in this area”.


The noble Baroness makes a very good point about the monitoring of EU regulations once they are converted into EU law and why those EU regulations are today enforced by EU regulators. I am glad she has raised this point. We are having extensive discussions with UK regulators on how this will work and furthermore, as she alluded to in her opening remarks, the need for consultation and discussion about that process and how we bring them over.

The noble Baroness, Lady Ludford, moved on to the interpretation of case law. I simply say gently to the noble Baroness that we need to have the certainty of the interpretation of case law which underpins a number of significant legal and policy cases—I am thinking in particular of our VAT policy. A large number of CJEU case law precedents shape that policy. We need to have that certainty on day one, hence the approach that we are taking.

As regards the noble Baroness’s point on consultation with the devolved Assemblies, yes, we will need to consult. We are giving Ministers there a power to amend their legislation to ensure that it, too, is going to be fit for purpose on day one. We are having regular meetings and we will continue to do so.

I am very keen to continue to consult with all Members of this House about the measures contained in the White Paper as it is absolutely critical we get this right.

[Lord Howell of Guildford (Con)]

My Lords, I realise that the bulk of this is mainly a conversion exercise, which is very sensible and I greatly welcome that, but when it comes to the powers to correct statutes and make and approve secondary legislation, as the Minister has described, can we assume that there will be some degree of filtration and even removal? Many of these vast numbers of regulations are not only unwanted—that may be a matter for opinion and debate in Parliament—but obsolete and come down to us from a pre-digital age and an era of centralisation which is long past. It would be a real waste of time, effort and space on the statute book merely to place them there when they are redundant.

[Lord Bridges of Headley]

My noble friend is making a good point that the noble Baroness, Lady Hayter, made about the potential for triage and flagging up to Parliament whether an SI is of a very technical nature or of a more substantial policy nature and therefore the level of scrutiny that is required. All I will say at this stage is that I am very keen that we get the balance right between bringing noble Lords and the other place with us as we make these changes, making sure that we get the scrutiny right with the level of speed that we need to proceed with. I am very interested in the point that my noble friend makes and we will certainly look at that.