European Union (Withdrawal) Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

The Constitution Committee points out that Clause 2 is not needed to ensure that most categories of domestic legislation—which in practice will remain in force—will continue to apply. It concludes that,

“clause 2 appears to be significantly broader than it needs to be”.

The Constitution Committee affirms that it is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as retained EU law and be subject to the powers of the amendment referred to in Clause 7.

Does the Minister accept this? If not, on what basis does he take that stance? The provision appears to be a way of allowing the Government to amend legislation by the mechanism of secondary legislation. With all the concerns around the excessive use of such procedures that have frequently been expressed by committees of the House and by Members in the Chamber, it would be reassuring if the noble and learned Lord could make it clear that that is not the Government’s intention in respect of this Bill.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am grateful for the contributions from Members of the House with regard to this issue. We are extremely grateful for the extensive work done by the Constitution Committee with regard to the Bill, as set out in the report, and for the consideration that members of the committee have given to the provisions of the Bill and some of the difficult issues that arise in transposing EU-based legislation into domestic law, because it represents something of a challenge in a number of respects.

I shall begin by referring to a matter that does not arise out of this group, or did not until the noble Lord, Lord Adonis, raised it, because it may help if I address his point about whether retained EU law is primary or secondary legislation. It is neither in the Bill. There are provisions in paragraph 19 of Schedule 8 with regard to the Human Rights Act, which is a very particular case, where it will be treated as primary legislation. There is the Constitution Committee’s recommendation that it should all be treated as primary legislation. I shall not go into detail at this stage because we will address this later, but I want to reassure the noble Lord about where we are.

That recommendation raises enormous difficulties because there are aspects of EU-derived legislation that, for example, involve the enumeration of the contents of a particular dye or chemical, and the idea that we could amend that only by way of primary legislation raises issues of its own. Nevertheless, it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others. For those who have an interest in this issue, I commend for consideration, at least, the recent observations of Professor Paul Craig of St John’s College, Oxford, in a blog on the UK Constitutional Law Association site dated 26 February—only a few days ago—in which, supplementary to an earlier note that he made, he proposes a categorisation of EU-derived legislation. I cannot say that it is one that we entirely agree with, but it is certainly one that we are looking at because there is more than one route to the resolution of this issue. We are looking at that and, for noble Lords who are interested in that point, it may be worth considering.

[Lord Adonis]

For those of us who are uninitiated into this blog, what would that mean?

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[Lord Keen of Elie]

I am not sure I understand the question.

[Lord Adonis]

What would the new status of legislation that the noble and learned Lord has just mentioned be?

[Lord Keen of Elie]

Professor Craig addresses a potential categorisation of EU-derived legislation by reference to its origins within EU law, so there is pre-Lisbon treaty and post-Lisbon treaty analysis based on the articles of the pre-Lisbon provisions and of TFEU post Lisbon in 2009. I shall not elaborate on it at this stage as it does not arise in the context of this group. With respect to the noble Lord, I simply want to reassure him that we understand that there is a debate about how we should categorise EU-derived legislation.

The second point I shall mention at the outset is the reference to the principle of supremacy. That turns on Clause 5(2), which ensures that the principle of supremacy—it currently has effect through the ECA—will continue to apply but only for the purpose of resolving conflicts which arise between EU law which is converted by the Bill into domestic law and pre-exit domestic law.

Again, we have to be clear what the purpose of that is. I acknowledge in passing that the Constitution Committee proposed a different way of addressing Clause 5, which on one view might be considered neat, in so far as it involves applying the principle of supremacy without using the word “supremacy”. We will come on to debate that in due course, as the noble Lord, Lord Pannick, observed, and I will not take time up with that at this stage.

I turn to Amendment 15. Clause 2 has been drawn broadly deliberately. As has been noted, it will preserve any domestic regulations made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the ECA 1972. But it also includes within its ambit any other domestic primary or secondary legislation which implements, or enables the implementation of, EU obligations and any related domestic legislation. In response to the inquiry from the noble Lord, Lord Pannick, I make the point that enactments often contain provisions derived from EU legislation—we have to remember that what we are referring to in Clause 2 is EU-derived domestic legislation. It is those parts of Acts such as the Equality Act or the Health and Safety at Work etc. Act that are EU derived which are to be brought within the ambit of retained EU law. It is necessary to read two elements: EU-derived domestic legislation—those parts of legislation that come from the EU—and retained EU law. They are linked.

[Baroness Taylor of Bolton]

I think I am following what the Minister is saying, but a moment ago he used the phrase “legislation which … enables” implementation. How much of what is “enabling” will be caught in this?

[Lord Keen of Elie]

It is only that part of the legislation which is derived from the EU which is then brought in and forms part of retained EU law. As a hypothetical example, let us suppose that there are 20 clauses in some piece of health and safety at work legislation, of which 10 are derived from EU legislation. That forms part of EU-derived legislation for the purposes of this Bill, and will come into retained EU law. But the other parts are not EU-derived legislation and will not form part of EU retained law.

[Baroness Taylor of Bolton]

I accept that, but the Minister is assuming that legislation is always very neatly compartmentalised in a way which would allow that. My fear is that there will be enabling parts of legislation that could be caught up because some subsection could be EU related.

[Baroness Ludford (LD)]

Could I just follow on from that by expressing a related concern? We know what the Government’s attitude is to the Charter of Fundamental Rights and we know that the Bill provides that there is no right of action on the basis of general principles of EU law. I am thinking aloud here, but the concern might be that even with only a strict and narrow interpretation of which bits of, say, the Equality Act are EU derived and therefore subject to all the consequences, including Clause 6, we might miss some of the context in which those narrow provisions should be interpreted if we were to remain in the EU and fully under the jurisdiction of the court.

[Lord Keen of Elie]

I am not sure I agree with that proposition. But of course, at the end of the day, pursuant to Clause 7, it will be necessary to bring forward regulations which address amendments that are required in regards to retained EU law. At that point of course, those regulations will be the subject of scrutiny to ensure that they are limited to those aspects which are EU-derived law and therefore EU retained law. I do not believe that that is necessarily a problem, but I hear what the noble Baroness has said. We will of course take into consideration any difficulties that could arise in that context.

I wish to add one further point that I meant to make at the outset in response to the noble Lord, Lord Adonis. He referred to me as the Advocate-General. I am not appearing here as a law officer, and nothing I say should be construed as law officer advice. I am appearing here as a Minister in respect of the Bill. I would not want there to be any misunderstanding in the light of his reference.

[Lord Foulkes of Cumnock (Lab)]

I am really interested in what the noble and learned Lord has just said. Could he explain what the difference is if he says something as a law officer or as a Minister? What import does that have? What difference does it make in the context of this House and in the legal context?

[Lord Keen of Elie]

I am obliged to the noble Lord. I would never say anything in this House as a law officer. It is my role to give advice to the Government in my role as a law officer, but I do not speak in this Chamber in that role. I just wanted to make that clear. The other difference can be found in the list of ministerial salaries.

Clause 2 is not broadly drawn for the reason that all this legislation needs saving—a point made by the noble Lord, Lord Pannick, with reference to Clause 14(6). It is broadly drawn for two important reasons. First, any deficiencies that might arise within this domestic legislation upon our withdrawal can be corrected by the Bill powers under Clause 7. I appreciate that there are noble Lords who will want to address the scope of those powers under Clause 7 when we come to it, but that is the purpose of drawing Clause 2 in this way. During the period in which we have been an EU member state, we have brought into our domestic law a great deal of EU law, and not just expressed as EU-derived law in the form of the implementation of directives or the direct effect of regulations. We have already had reference to the scope of, for example, the Equalities Act; there is also the health and safety at work legislation. These are areas in which we know we find EU-derived legislation. It is therefore important that we bring all that together in order that it can be subject to the regulatory processes in Clause 7, subject of course to the debate that will take place with regard to the scope of the powers in that clause.

The second, rather more important, reason for treating all this legislation as part of retained EU law—I emphasise the connection between EU-derived legislation and what is defined as “retained EU law” for the purposes of the Bill—is that we have to ensure that retained EU law will continue to be interpreted consistently by our courts under Clause 6 of the Bill. This, I apprehend, is why the Bingham Centre, for example, said, while addressing the question of the scope of Clause 2, “If you’re going to narrow the scope, then you’re going to have to amend other parts of the Bill, in particular Clause 6”. That might be a different road to the same goal. All I would say at this stage is that the road we would take is to address this in the context of Clause 2 and the scope of that clause. In a sense, if Clause 2 were narrower, the powers under Clause 7 would be much broader. If we did not bring all of this into the definition of EU-derived legislation but wanted to be able to operate by way of regulations pursuant to Clause 7, there would be virtually no boundaries for the Clause 7 powers, whereas they are circumscribed by the definition that is brought into Clause 2 in the present form.

In my respectful submission, it would be odd if we were to take these categories out of Clause 2 and therefore find ourselves in a situation in which the construction of that law now differed from what it would have been while it remained to be interpreted by reference to the canons of construction that presently apply while we are a member of the EU. It is important that it should be part of retained EU law in order that we have consistency of interpretation. I do not take issue with the suggestion that an alternative route might be to narrow Clause 2 and then completely amend Clause 6, but that is simply not the route that the Government are taking here. I have sought to explain why we are taking this particular route at this time.

I hope that I have reassured noble Lords that Clause 2 is wide in its scope, but for a legitimate purpose. As I said, we will come in due course to address the question of whether and to what extent Clause 7 should complement those provisions with regard to retained EU law. In those circumstances, and emphasising again that we are listening to various considerations about how Clause 2 is formulated, I hope that noble Lords will see fit not to press their amendments. I am obliged.

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

I seek clarification from the noble and learned Lord. As I understand it, the words “so far as”, are intended to give Clause 2 limited range. Is this a useful touchstone, in so far as without the provisions we would have failed to implement our obligations under EU law? As I understand it, paragraphs (b), (c) and (d) address aspects of our domestic legislation that are designed to give effect, as they had to, to EU law, but only in so far as they are achieving that objective does Clause 2 have any application. Is that right?

[Lord Keen of Elie]

That is indeed my reading. The noble Baroness alluded to this earlier in her contribution. That is why I sought to emphasise the term “EU-derived” domestic legislation. It is the derivation of that aspect of a particular Act which is to be brought within the ambit of retained EU law for these purposes.

[Lord Pannick]

I thank all noble Lords who have contributed to what has been a valuable debate, including the noble and learned Lord, Lord Keen, in whatever capacity he was speaking to the House. The noble Baroness, Lady Taylor, and the noble and learned Lord, Lord Mackay, emphasised the need for legal certainty not just in this clause but throughout the Bill, even though that harms the interests of the legal profession. I should have declared my interest as a barrister who may benefit from legal uncertainty. A number of barristers are present in Committee: the noble Lords, Lord Faulks, Lord Carlile and Lord Thomas of Gresford. There may be others, all of us no doubt thinking that this is the reverse of Thomas Erskine’s comment when he was asked how he had the courage to stand up in the court of Lord Mansfield. He replied that he thought of his children pulling at his robe and begging him, “Now, father, is the time to get us bread”.

The noble and learned Lord, Lord Keen, said that Clause 2 applies only to those sections of the Equality Act, for example, which were enacted for a specified EU purpose or have a relevant EU law connection. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, gave an explanation of that, and the noble and learned Lord, Lord Mackay of Clashfern, agreed with that approach. That is very helpful in limiting the scope of Clause 2. However, it raises a problem, to which the noble Baroness, Lady Taylor, alluded. If Clause 2 applies only in relation to those parts of the statute which were enacted for a relevant EU purpose, there is still a problem of legal certainty, because there will be disputes as to which parts of the Equality Act—or other legislation—satisfy those criteria. I must say that the criteria in Clause 2 are far from clear. They operate by reference to the purpose of the legislation or whether the legislation relates to EU material. So there may still be a problem here.

I have two suggestions for the noble and learned Lord. First, if as he said, and I entirely accept what he said, Clause 2 is intended to apply only to those parts of the enactment—the Equality Act, or whichever Act—that are linked to EU law or have an EU purpose, the Government might wish to bring forward an amendment to Clause 2 on Report to make that clear on the face of the Bill. The second suggestion is that the noble and learned Lord might wish to consider whether any further clarity can be provided as to how the courts are supposed to apply this section-by-section approach and identify the purpose of the relevant section or whether it relates to EU law.

I noted the very helpful comments of the noble and learned Lord, Lord Keen, on the status of retained EU law and on the supremacy of retained EU law. As he said, we will come to those matters next week, and there are amendments addressing them. I associate myself with the comments of the noble and learned Lord on the valuable contributions by Professor Paul Craig of the University of Oxford.

This has been a helpful debate in illuminating the Government’s intention. I will reflect, and I am sure the Constitution Committee will want to reflect, on what the Minister has said and on the other contributions. I beg leave to withdraw the amendment.

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[Lord Foulkes of Cumnock]

My Lords, I am really grateful to the noble and learned Lord, Lord Wallace of Tankerness, himself a former Advocate-General, for moving this amendment. In the light of what he said, all I can say is that I agree with his every word.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord and the noble Lord not only for explaining the amendment but for their endorsement of it.

In responding to Amendments 16, 17 and 342, I start by reaffirming our view that Clause 2 is an essential provision for providing certainty and continuity regarding our law after exit day. I think that that is plain to all noble Lords. I shall then say a little more about why Clause 2 must stand part of the Bill. This clause, along with Clauses 3 and 4, delivers one of the core purposes of this Bill: maximising certainty for individuals and businesses when we leave the EU by ensuring that, so far as is practical, the laws that we have now will continue to apply. In that respect, Clause 2 preserves the domestic law that we have made to implement our EU obligations; we have touched on that already.

More particularly, on the point raised by the noble and learned Lord in this regard, Amendment 342 seeks to clarify that Acts of the Scottish Parliament are included within the clause only if they have received Royal Assent before exit day. I suspect that Amendment 16 also seeks to provide clarity on that same point. I am grateful for the opportunity to clarify any uncertainty that there may be here. Clause 2(2) states that,

“‘EU-derived domestic legislation’ means any enactment”

that is described in that subsection. Clause 14 defines the term “enactment” to include an enactment contained in an Act of the Scottish Parliament. An Act of the Scottish Parliament must have received Royal Assent; until that time, it is a Bill. Section 28(2) of the Scotland Act 1998 provides for this. So an Act of the Scottish Parliament that has only been passed and not received Royal Assent does not fall within this definition, and would not be categorised as EU-derived domestic legislation for the purposes of this Bill. I believe that the noble and learned Lord rather suspected that this might be the case; his concern seemed to be one of certainty as regards the drafting.

The same applies in relation to Acts of the UK Parliament. The reference to “passed” in Clause 2(2)(b) is therefore a reference to the purpose for which the enactment was passed, not whether it was passed. In that context, I venture to suggest that Amendments 16 and 342 are unnecessary.

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. He does get my point that it is for clarity; in Section 28 of the Scotland Act, there is a distinction made between being passed and Royal Assent. It is the word “passed” that appears in Clause 14(1) and the noble and learned Lord knows as well as anyone that, when statute uses the same word, it may—not unreasonably—have the same interpretation. Yet, a Bill “passed” by the Scottish Parliament is not the same as “enacted”. Simply, does it really go to the heart of this Bill that the Government could not bring forward an amendment just to make it clear beyond doubt and, therefore, not allow unnecessary litigation at some stage in the future? Because you can bet your life that something will come up when someone finds some clever point.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord. I do not have any red lines so far as Clause 2 is concerned in this context. It appears to me that if there is concern about a lack of certainty, we can take that into consideration, and we will do so in time for Report. I do not indicate that we will bring forward any amendment in regard to this; it seems to me, as the noble and learned Lord will appreciate, that context is everything. We have to read the provision and the use of “passed” in Clause 14 in the context of what is said in Clause 2(2), but I hear what he says. I am not seeking to strike it down, as it were, at this stage; I am merely seeking to explain the approach that we have taken to this issue and why we consider that, on the face of it, Amendments 16 and 342 are unnecessary.

Amendment 17 seeks to mirror the language of Clause 3 in terms of the cut-off point for inclusion within the scope of the clause. Clause 2 of course works in conjunction with Clause 3, which converts direct EU legislation into domestic law. Both clauses take a snapshot of the law that is in place immediately before exit day. EU-derived domestic law will fall into the scope of Clause 2 if it has been enacted before exit day—that is, if it can be said to be on the statute book at that time. There is of course a different test employed for direct EU legislation to be retained under Clause 3, because direct EU legislation must be operative within UK law “immediately before exit day”, as defined in Clause 3(3). That is why there is a distinction between the two clauses; they serve distinct purposes.

As I say, we are listening and we will consider further the point made by the noble and learned Lord and by the noble Lord, Lord Foulkes. Having given an explanation of the Government’s position, I hope that, at this stage, they will see fit to withdraw or not move these amendments.

[Lord Wallace of Tankerness]

I am very grateful to the noble and learned Lord for his response and his willingness to look at this and take on board the comments made. A simple amendment could be made that in no way detracts from the purpose of this Bill; if anything, it would add to that purpose in terms of legal certainty. Using the word “passed”, which, from what the noble and learned Lord said, has a different meaning in two Acts, is not helpful. I do not think the amendment in any way departs from or mitigates what the Bill seeks to achieve and I therefore strongly encourage the noble and learned Lord and his colleagues to bring forward a simple amendment to provide legal certainty. I beg leave to withdraw the amendment.

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[Baroness Hayter of Kentish Town]

I agree: the Committee will be pleased to know that, had the letter ended like that, I would not be on my feet today. These are important measures for our international co-operation, and if the Government would say, “Yes, this is something that we are willing to do”, that would take us forward. I hope that the noble and learned Lord may be able to give us that assurance as he responds.

[Lord Keen of Elie]

My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

[Baroness Ludford]

Nobody, I think, has questioned that. We are talking about directives.

[Lord Keen of Elie]

That is what we began talking about but the noble Baroness, Lady Hayter, for example, has referred to regulations. I will come on to address the point she made, but regulations have direct effect and if a regulation has direct effect by exit day it will form part of retained EU law. Directives have no direct effect in the domestic law of a member state. Directives have to be the subject of implementation and in that regard a transition period is given to member states for the implementation of a directive. There may be directives that have been adopted prior to the exit date which have a transitional period that will expire by the exit date specified in the Bill. In that event, the Government have indicated that they will seek to implement those directives that require implementation by a transitional date before the exit date. Therefore, they will become part of retained EU law because they will have been implemented in our domestic law.

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[Lord Pannick]

Perhaps I might suggest to the Minister, and ask him to confirm, that there will also be directives that have passed their implementation date and have not yet been implemented in domestic law, but are sufficiently clear and precise that they confer individual rights under EU law and, therefore, to that extent they will be part of retained EU law.

[Lord Keen of Elie]

With respect, that is a slightly different point. First, the Government are committed to implementing in domestic law those directives which have a transition period that expires before the exit date. There are, however, circumstances in which a directive may have direct effect in a question between an individual and the state but has not been implemented in domestic law. That is subject to a determination by the Court of Justice of the European Union or, indeed, by our own courts. In circumstances where a directive has not been implemented by the end of the transition period and has direct effect as determined by the courts of justice, and that has been determined prior to the exit date, that will be brought into domestic law by way of Clause 4. That is the point of Clause 4 in that context.

Where a directive has been adopted before the exit date but has an implementation period which expires after the exit date, and has not been implemented in domestic law by the exit date, that will not form part of our domestic law and therefore it will not form part of EU retained law for the purposes of the Bill.

[Baroness McIntosh of Pickering]

Both my noble and learned friend the Minister and my noble and learned friend Lord Mackay have indicated that the Government could choose to implement directives falling into that category if they wished to do so. My question to the Government is: what is the legal basis for doing so? My understanding is that there is not a legal basis at the moment, which is why I tabled this amendment.

[Lord Keen of Elie]

There is no legal basis for doing so. With great respect to my noble friend, her amendment would not actually provide one; that is perhaps an aside. The point is more central than that: directives that have been adopted but not implemented by the exit date, and which have a transition period that goes beyond the exit date, are not part of domestic law, and for the purposes of the Bill they will not become part of domestic law or EU retained law. Therefore, we will not be taking them into our domestic law by way of an implementation that takes place after the exit date.

[Lord Wigley]

Following this is fairly complicated, is it not? To add to that complication, what will be the position on devolved matters—such as environmental matters, which are to a very large extent devolved—where the implementation may be on different dates in different devolved regimes?

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[Lord Keen of Elie]

We have to be clear here about the distinction between implementation and application. Essentially, there is only one date for implementation. That is when we implement the directive into our domestic law. There may be situations—and if I misunderstand the noble Lord’s question, I am sure he will tell me—in which there is a directive, or indeed a regulation, that is adopted into domestic law but which applies only at a date after the exit date. There are examples of regulations as well, where we accept that the regulation has come into domestic law but its actual operation is deferred, perhaps until 2020. That regulation or that provision will form part of our domestic law at the exit date, even though the operative provisions come into force only after the exit date.

[Lord Wigley]

I do not want to overlabour this point, and perhaps it is one that the Minister could look at between now and Report in case there is any validity in what I am raising, but since it is by instruments that are passed in the National Assembly for Wales or in the Scottish Parliament that some of these will be put into force, there will quite likely be different dates for those purposes, and that could have a material effect. Some may fall one side and others the other side of 29 March 2019.

[Lord Keen of Elie]

If I understand the noble Lord’s point, he is suggesting that we may have a situation in which a directive that has been adopted is implemented in England or in Wales or in Scotland but on different dates.

[Lord Wigley]

Yes, indeed, or it may have failed to have been implemented within the timeframe in one area and therefore does not get implemented but does get implemented in another area.

[Lord Keen of Elie]

In that event, it will be by reference to the exit date that we determine whether or not it forms part of the domestic law.

[Lord Hannay of Chiswick (CB)]

I wonder if the Minister could deal with one category which I do not think he has dealt with yet; that is, a directive that is adopted before the exit date but whose implementation date is after the exit date but within the standstill period which the Government are currently negotiating in Brussels—and which, it is no secret, will involve the Government accepting that all the obligations of European law will continue to apply during that period.

[Lord Keen of Elie]

The implementation period is a wholly distinct issue from what we have to address in the context of the Bill. The implementation period has yet to be negotiated. The outcome of that implementation negotiation has yet to be determined. In the event that we agree an implementation period, clearly there will have to be further statutory provision—a further Bill—addressing our rights and obligations during that implementation period, and it may be that that further Bill will amend this Bill with regard to the effect of the exit date on further EU legislation, whether in the form of regulations or directives, after 29 March 2019. But that is not an issue for this Bill. This Bill is dealing with the situation at exit, subject to the fact that, if there is a negotiation, things may change.

[Lord Adonis]

For those of us who have not been following the minutiae of the Government’s announcements, can the Minister say that it is an absolute commitment on the part of the Government that directives that have been adopted and for which the implementation date falls before 29 March next year will be implemented?

[Lord Keen of Elie]

My Lords, my understanding is that the Government are determined, and have the present intention, to implement directives that have been adopted and which have an implementation period that expires before the exit date. I cannot give an absolute assurance to that extent but that has been and continues to be the Government’s position. Indeed, to put it another way, we will continue to perform our obligations as a member of the EU, as we are bound to do by the treaty provisions. One of our obligations is to implement directives that have been adopted in Europe within the implementation period or by the transition date that is set out.

[Lord Falconer of Thoroton (Lab)]

I express my gratitude and admiration for the way that the noble and learned Lords, Lord Mackay of Clashfern and Lord Keen of Elie, are bringing lustre to the Scottish Bar in the way that they are answering all these questions so brilliantly and with such trouble. My inquiry relates to a directive requiring implementation that has not been implemented, where there are certain rights that would be directly enforceable by an individual and there is no court case that says that. Can you go to court afterwards and say, “We can enforce that because there was a directive prior to the date of exit”? No court has said that it was directly enforceable; you could argue subsequently that if you win, you win—this would be in the domestic courts—and can say it is enforceable. Would that be covered?

[Lord Keen of Elie]

No, that would not be covered, because in those circumstances there would have been no crystallisation of the direct right prior to the exit date. That is our position with regard to that point—but I am obliged to the noble and learned Lord for his acknowledgment that we are answering questions as they are posed. I was rather hoping that my noble and learned friend Lord Mackay of Clashfern might actually come forward to the Front Bench and allow me to retire to the second tier in order that this matter could be dealt with even more cogently than I am able to do.

I return for just a moment to the actual amendment. I have sought to emphasise—clearly, I hope—why the amendment is not appropriate in the present context. It would simply take away from one of the principal purposes of the Bill, which is to determine that there is an exit date—a cut-off point—when we will determine the scope of our own domestic law. I can quite understand the point made by the noble Baroness, Lady Young, about emerging provisions in the EU that have been worked on for many years and that would bring about appropriate and attractive standards for various aspects of our life in the United Kingdom—but, of course, it would be perfectly open to this Parliament to decide, in light of what has already been agreed in Europe, that it would be appropriate to have these standards in our domestic law, and we will have the means to do that. It is just that they will not form part of retained EU law for the purposes of this Bill.

On the noble Baroness’s amendment, I respectfully suggest that the mechanism that she has put forward—that you somehow retain the ECA for some purpose after it has been repealed—simply would not work. I appreciate that this is Committee, and we are actually looking at the underlying purpose of the proposed amendment and therefore have to consider whether we find that attractive and then look for a way to make it work. Nevertheless, it is appropriate to notice that the actual mechanism proposed in the amendment would not work.

I hope that I have addressed most of the points raised by noble Lords, but I agree with the observations made by the noble and learned Lord, Lord Brown, my noble and learned friend Lord Mackay and the noble Lord, Lord Pannick, with regard to what this Bill is attempting to achieve. It is attempting to achieve certainty as to the scope of our domestic law at exit date. That is its purpose, and we must keep that in mind.

[Baroness Ludford]

Will the Minister take another look at Clause 4(2)(b), which is a double negative? It talks about rights that are,

“not of a kind recognised”,

by the European Court or any UK court. When he was talking earlier about a directive that had direct effect, I think I recall him saying that it would have had to be recognised by a court decision as having direct effect—but the wording of Clause 4(2)(b) suggests a direct effect if it is “of a kind” that has been recognised by the European Court or a UK court. He might not be able to reply immediately but perhaps, when we come to Clause 4, he could look back at what he said today on directives with direct effect and be sure that there is a logical fitting together with Clause 4(2)(b).

[Lord Keen of Elie]

In my submission, it fits entirely with what is said in Clause 4(2)(b) and is consistent with that. It points to the necessity of there having been a recognition by the European Court or a court or tribunal in the United Kingdom for those purposes. It may be that the noble Baroness will want to take issue in due course with the use of the word “kind”, and no doubt we will come to that when we consider amendments to Clause 4.

[Lord Pannick]

This is the precise subject of Amendment 26, which arises out of a recommendation from the Constitution Committee. If the noble and learned Lord, Lord Falconer of Thoroton, is interested in this subject, we are going to debate it under Amendment 26.

[Lord Keen of Elie]

I am obliged to the noble Lord, but we have ranged rather widely in the context of the present debate—or, to use my noble friend Lord Deben’s term, we have got a little bit fuzzy as regards the precise terms of the amendment. I hope that, in light of the explanations that I have sought to give, including the reference to regulations and the point raised by the noble Baroness, Lady Hayter, to which we will return in due course, the noble Baroness will see fit to withdraw her amendment.

[Baroness McIntosh of Pickering]

I am grateful to all those who have spoken in this debate. I had not realised that we were going to have such a full debate, but it shows the importance of the issue that has been raised in Amendment 18. With regard to fuzzy wording, I am sure that my noble and learned friend Lord Keen, like myself, remembers a key distinction. I was one of the first law students to do the compulsory six-month constitutional law course on EU law, in which we learned straight off that a regulation is directly applicable and does not require any other implementation, whereas a directive is given direct effect only through implementation.

I am grateful to the noble Lords, Lord Wigley and Lord Liddle, who managed to put more flesh on the bones and give much greater clarification to what I was hoping to say. I am a little concerned by the Minister recognising that there is no legal basis for what we are seeking to do here—and my noble and learned friend Lord Mackay of Clashfern as well. I suggest, mindful of the comments made by the noble Lord, Lord Pannick, that this amendment has established that a legal basis is required, and if this is not the wording that would give that legal basis, I would request that the Government come forward by Report with the legal basis in the form of an amendment on which the House could agree. On that basis, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Pannick]

The only reason why the noble Lord is not carrying me with him is that I do not understand the purpose of paragraphs 3 and 5 of Schedule 8. It seems to me extraordinarily broad, which is why I am seeking an explanation from the Minister as to why we need these powers, given that we also have Clause 7 in the Bill, which is time limited.

[Lord Keen of Elie]

My Lords—

[Lord Judge (CB)]

May I just have a few moments?

[Lord Judge]

Well, noble Lords may not want to hear what I am going to say. I have had a sense developing over the last 40 minutes that we are well ahead of ourselves. We should be discussing these issues when we come to decide the very important question of whether retained EU law is to be treated as primary legislation, subordinate legislation or a bit of both. We will then have a debate on Clause 7, which entirely addresses this issue of subordinate legislation and Henry VIII powers, and we will come again to it when we debate Clause 9.

I just make two points. First, no Parliament can bind its successor. We do not know what a future Parliament will think about all these various matters raised in proposed new subsection (6) in Amendment 21; they are very important issues, but we cannot bind anybody. Secondly, in relation to the exercise of any Henry VIII powers—and there will of course have to be careful thought given to it—I am fascinated by the proposal in proposed new subsection (2) in Amendment 21 that a schedule should list,

“technical provisions in retained EU law that may be amended by subordinate legislation”.

When we come to look at Henry VIII powers, do we not have to take a rather more revolutionary look at them? Should we not be saying to ourselves that the Government of the day—whatever Government it may happen to be—should, at the very least, in the proposal for subordinate legislation, set out which terms of primary legislation are being repealed, amended or affected by the secondary legislation? That is some food for thought.

[Lord Keen of Elie]

My Lords, as may have been observed during the passage of the Investigatory Powers Bill, the Government are always listening. I am most obliged to the noble and learned Lord, Lord Judge, for his observations, because they go to the very heart of the point I want to make. We are, in a sense, having the wrong debate in the wrong place, but I am also relieved to hear from my friend the noble Lord, Lord Pannick, that he does not understand paragraph 3 of Schedule 8, because I was rather concerned about his earlier interpretation of it under reference to the opinion of Pushpinder Saini, QC—I will come back to that in a moment, if I may.

The areas that these amendments seek to protect, such as employment rights and environmental standards, are issues that are important to every Government, and in particular this Government. Of course, we are anxious to ensure that rights and standards such as these are maintained—indeed, where possible, increased —after we leave the EU. It might be observed that UK protections in many of these areas—for example, parental leave—in fact go beyond the level of protection provided for in EU law, so let us keep this in context.

It is important, however, that we are able to address deficiencies to ensure that the protection of these rights and the standards that they reflect continue to function effectively and that the Government are able to amend legislation in line with our history of leading in these areas of protection. When people voted to bring back power to our Parliament and to bring back control of our laws, they did not vote to put them in the deep freeze for any number of years. We have to see this in context: we are talking about thousands of regulations—somewhere in the order of 12,000 regulations —which were of course not the subject of parliamentary scrutiny; and we are talking about thousands of SIs implementing directives, which were of course not the subject of parliamentary scrutiny, which have come into our law and will be part of our law on exit day, because they will form part of the area of retained EU law.

The noble Baroness, in her amendment, proposes a schedule of “technical provisions” in an area where we are dealing with enormous quantities of law, by way of regulation and by way of implemented directives. The first point that would arise is: where is the line to be drawn between what is a technical and a non-technical provision? The noble and learned Lord, Lord Falconer, alluded to this as one of the three criteria he had in mind. You have to be able to define these criteria, otherwise you immediately run into a further issue. That is in itself a very real challenge: how would we define or class a technical issue in the context of seeking to update retained EU law?

Perhaps the more important point, however, is that much of what has been said here anticipates the issues that we will debate in the context of Clause 5, on the classification of retained EU law, and, more particularly, Clause 7, in relation to the exercise of certain powers by government in dealing with the body of retained EU law. Again, it is important to try to put this in context. We have had references to the suggestion that the Government are taking untrammelled, unlimited powers to do virtually anything with the statute book. Let us not, even if we think we have a good case, overstate it because, in doing so, we rather spoil our argument. That is not at all what the Government seek to do. Clause 7 is concerned with how we deal with deficiencies arising from our withdrawal from the EU. It is therefore concerned, as it says, about the making of regulations which are,

“appropriate to prevent, remedy or mitigate—

(a) any failure of retained EU law to operate effectively”.

We are not talking about wholesale policy changes to our employment or environment laws, our standards for consumers or anything of that kind. The noble Lord, Lord Pannick, referred to—

[Lord Davies of Stamford]

I am grateful to the noble and learned Lord for giving way. Of course, we hope that we are not talking about any of those things. We hope that we are not talking about radical changes and reductions in some of the essential regulation which we have all said is so necessary. However, we need a little bit more than hope. We need some evidence of the Government’s commitment to restrain themselves when it comes to using these powers.

[Lord Keen of Elie]

That is why Clause 7 is drafted in the terms in which the noble Lord will find it in the Bill.

Reference was also made to the provisions of paragraph 3 of Schedule 8. I am not sure how the noble Lord, Lord Pannick, interpreted that paragraph but let us be clear: it refers to existing powers, not to powers created under this Bill. Those powers already exist in respect of existing legislation. They are not being extended. If the Government truly intended to bring about wholesale change to these policy areas, and could do so on the basis of their existing powers, perhaps they might have done so already. The provision does not extend to these powers. Therefore, again, with respect, it appears to me that the matter is being taken out of context. However, I would be happy to look at the opinion on this from Pushpinder Saini referred to by the noble Lord, Lord Pannick.

[Lord Adonis]

My Lords, he pointed out that Schedule 3 is not the key—

--- Later in debate ---

[Lord Keen of Elie]

My Lords, we must make progress at this stage, if the noble Lord does not mind. We have to keep moving.

I come to the nub of the point. If there is a concern about the powers being conferred on Ministers to ensure that the retained EU law works after exit, that arises in the context of Clauses 7 and 5, which will be the subject of future debate in this House. As I say, it is not appropriate to try to represent the powers already set out in the Bill as extending beyond the boundaries set out precisely there about correction, regulation and making retained EU law work. I respectfully suggest that the route proposed by the noble Baroness is not one that we should go down as we would simply run into the sand. If we were to list technicalities and technical changes in all these areas of legislation, we would be here in 10 years’ time trying to produce such a schedule; let us be frank about it. Of course, many people may wish that we will be here in 10 years’ time attempting to achieve that. In that context, I invite the noble Baroness to consider withdrawing her amendment and invite the noble Lord, Lord Judd, not to move his.

[Baroness Hayter of Kentish Town]

I thank all noble Lords who have spoken. I know the Committee will not believe this but the three noble Lords I most want to thank are the noble Lords, Lord True and Lord Faulks, and the noble Viscount, Lord Trenchard. I thank the noble Lord, Lord True, for raising my spirits. I love the words “Labour Government”; I will use them again and again. I thank the noble Viscount, Lord Trenchard, because sometimes when you know what you are talking about, you assume that everyone else does. I had got something wrong and it was not clear. I was not talking about how, under this Bill, the current EU rules will be put into legislation by statutory instruments. We are content with that. We will in due course argue about whether the relevant word should be “necessary” or “appropriate”, but that is not the purpose of this amendment. I thank the noble Viscount, Lord Trenchard, for giving me the opportunity to say that.

The purpose of the amendment is about looking way into the future and future-proofing what we are putting into UK legislation and to make sure that it cannot then be tampered with by means of statutory instruments. It is not about the current work that many of our colleagues on the statutory instruments committee are about to undertake. We are talking about the future. I again thank the noble Viscount for giving me the opportunity to discuss that.

I say to the noble and learned Lord, Lord Judge, that I said at the beginning of this discussion that we would come on to how we deal with the bigger issues involved in this matter. However, today, I want to discuss the human, environmental and consumer rights that we sometimes risk losing sight of when we get into the technicalities of law and how we are going to hold on to those. As I said, I absolutely accept that we may deal with the technicalities later.

The noble Lord, Lord Faulks, said that certain bits of retained EU law could possibly be dealt with by statutory instruments and others by primary legislation. Elsewhere in the Bill judges are allowed to deal with measures on a case-by-case basis. But in the case of retained EU law, we have a difficulty as I think he said that he was happy for the Government to decide which measures could be dealt with by secondary legislation. Perhaps that is the nub of the problem.