European Union (Withdrawal) Bill

Lord Kakkar Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I thank the Leader of the House for the thoughtful way in which she introduced the debate and the noble Baroness, Lady Smith of Basildon, and the noble Lord, Lord Newby, for having achieved an important degree of consensus on some important principles. They are that it is of course absolutely essential, and the duty of the your Lordships’ House, to scrutinise very thoroughly the legislation before us, which will have an ongoing and fundamental impact on the rights and lives of our fellow citizens for many generations to come, but at the same time that your Lordships’ House should not, and probably will not, use the Bill to in any way undermine the authority and primacy of the House of Commons. We have the right of course to revise and to ask the other place to think again, both about issues that it has already considered and about the many issues in the Bill that it has not properly scrutinised, but it would be completely wrong ultimately to frustrate the will of the other place in any way.

In the context of those simple principles, I will touch on two areas, although there are of course many that will require important scrutiny. The first deals with regulations that are important to our national interest—in this regard, regulations that relate to the question of clinical trials. In so doing, I declare my interests as a professor of surgery at University College London, director of the Thrombosis Research Institute and an active biomedical researcher.

The current clinical trials directive, which has been transposed into domestic legislation, has been much criticised because it is considered to have thwarted and undermined in many ways the ability of our country to perform clinical research at the most efficient level. As a result, quite rightly, new clinical trials regulation has been considered and developed. Our own research community made substantial contributions to the development of that regulation, and it is a much better piece of legislation. That is recognised to be a good thing. It was due to be adopted across the European Union in October 2018, but there has been a delay to its adoption and it will now not be applied until later, in 2019.

As a result, the legislation that deals with the conduct of clinical trials, which is vital to delivering healthcare in our country and to our life sciences industry, will be retained legislation with the current directive. As far as I can see, there is no mechanism for a regulation that has been agreed but not yet applied across the European Union on the day of exit to be dealt with under the Bill.

I therefore ask Her Majesty’s Government how they will deal with that question, which is of considerable importance. There may be other areas where we, in our national interest, have agreed or will in the coming months agree regulations that will not be applied by the Union by the time of our exit from the European Union. As far as I can see, the Bill does not deal with that.

Clause 6(2) deals with the regard that courts and tribunals should give to the development of European law which, at the time of exit, has become retained European law but which is further developed thereafter by the European Court of Justice. Here I declare my interest as chairman of the Judicial Appointments Commission. The Bill proposes that the courts and tribunals do not have to take account of the further development of law beyond the time of exit, but they may do so if they think it appropriate. That seems a confusing and dangerous proposition.

Inevitably, and quite rightly, the European Court of Justice will continue to develop its law with the interests of the European Union, both political and economic, firmly in mind. Those issues may be quite different to our national interest, but the Bill proposes to leave the judiciary to make the decision about whether they should pay attention to this matter and what weight they should give to it—that is, the development of law beyond the time of exit from the European Union. As your Lordships’ Constitution Committee identified, that risks drawing the judiciary into areas of political controversy. Parliament has rightly taken the view that there should be a separation of powers, that Parliament is sovereign, that Parliament is responsible for matters of political policy and for the establishment of statute and that it is for the courts thereafter to interpret the law and apply it.

It therefore seems wholly counterintuitive for this Parliament to take the judiciary—an important part of our constitution—to a place where it may be drawn into political controversy, as a result of which there may be a loss of confidence in our independent judiciary and a loss of morale. That would be a terrible consequence of departure from the European Union and, as the Constitution Committee rightly identified, it is a matter that needs to be carefully scrutinised. The committee identified a potential solution—there may be others—but clearly it is a matter that your Lordships’ House will need to consider in detail and potentially ask the other place to consider once again its position on this matter.