Retained EU Law (Revocation and Reform) Bill

Lord Kerr of Kinlochard Excerpts

Committee stage
Monday 6th March 2023 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

I am not a lawyer—that will become very apparent from what I am going to say—but I support Amendments 68, 69 and 69A. I am puzzled that the Government say that their aim is to introduce legal clarity. I think back to 50 years ago and Lord Denning’s great speech about EU law coming inextricably up the estuaries and rivers. He did not think that we should join the European Community. He made a remarkable speech, which was correct: over 50 years, EU law has come up the rivers and estuaries. How do you desalinate the common law of England? It grows organically. Which bits do you prune? How do you know which nutrients were of European origin and which were of domestic origin? How do you go about this task? Fortunately, it seems that we are not going to be allowed any role in this, because it is going to be done by a Minister with the stroke of a pen. Surely that cannot be right.

The wonderful letter we got from the Minister at noon today explains what we are doing now in the following terms:

“Retained case law is not being sunset”—


I would have said “sunsetted”, but still.

“However, the repeal of section 4, and the removal of supremacy and general principles by clauses 3 to 5 will mean that after the end of 2023 the effects of these features of EU law would not be expected to be read in to relevant retained case law, when our domestic courts are interpreting and applying assimilated law. However, where there is a restatement of case law concerning the application of principles being removed by clauses 3 to 5 of the Bill … it would be expected that courts would continue to consider relevant case law where it is clear from the restatement that that is the intention.”

If I were the court, I would have no idea how to interpret that. What am I supposed to do? I am supposed to work out what the Minister’s intention was from his restatement. Did he intend that I should still look at that EU law, or not? If I am not to look at it, what am I supposed to look at? Fifty years have passed. Does all that salinated law—all these precedents—have to be ignored? I find it quite hard to believe.

The letter explains:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … when they are interpreting and applying assimilated law. Instead, we expect them to apply domestic principles of interpretation.”


What are “domestic principles of interpretation”? We have 50 years of precedent and case law. Is that domestic? I say, yes, it is—but, of course, it is salinated. EU law did affect the development of UK law. So, the reports that are called for in these amendments are absolutely necessary. I feel reluctant to impose on the Law Commission the heavy load that Amendment 69A would place on it. I have great sympathy with the noble Lord, Lord Kirkhope, and I would have preferred his solution to the matter.

I have one other mild grievance with the letter that arrived at noon from Lord Gobbledy of Gook—sorry, the noble Lord, Lord Callanan. It answered a lot of points raised in this debate over the past three days, but not mine. I have now asked four times what the procedure is for getting rid of pieces of EU law—our law—that are to be disapplied and abolished altogether. What we get in reply are examples: we hear about olives, lemons, and navigation in the Skagerrak. I agree with that; no doubt there are several pieces of law that have never been relevant and have no relevance now, and that none of us will miss much. However, there could be others that a Secretary of State might wish to abolish but some of us might take a different view on. For example, if Mr Rees-Mogg were still in charge of this exercise, one could imagine that his might be quite a liberal interpretation of the power to extinguish. What procedure is to be followed? People have to know whether or not laws exist, so there must be some sort of publication. The Minister cannot do this absolutely in private.

Secondly, I would have thought that there would have to be some sort of legal instrument. I do not see how you can pare the statute book without doing so in a clearly legally established and recognisable way. Thirdly, it seems to me that there must be some role for Parliament in that exercise. I cannot see what it is and we have not been told. My questions for the Minister are these: what procedure is going to be used; how will the users of the law know that it has been used; and what role will Parliament have in making the decision?

[Lord Collins of Highbury (Lab)]

My Lords, I too am extremely grateful to the Minister for his letter; I actually got it on Friday. I certainly welcome it. One of the sentences in the letter that struck me—it hit me in the face, as it were—was in the paragraph at the bottom of the second page:

“The Government is intent on bringing clarity to the statute book, and for citizens and businesses so that they are clear as to the rights that they rely on”.


That is the fundamental issue here; it is certainly the one that I want to concentrate on in our debate on this group. By the way, I am not going to repeat the points about the potential impact as we have had lots of discussion about that.

We are dealing here with known unknowns, if you like. As the noble Lord, Lord Kerr, just said, it is about the idea that we do not know quite what impact the case law and common law that has developed over 50 years has had. Of course we had a very detailed discussion on Clause 1, but Clause 3 is potentially even more serious because it deals not with specific regulations that might be identified on the dashboard—it is now approaching 4,000 pieces of legislation—but with areas where we are not sure whether the legislation is EU-derived, are not sure about the impact of EU law on them, and where decisions will undoubtedly have a huge impact.

These amendments are trying to assist the Government in how to ensure a proper process for identifying these things before anything falls off a cliff edge ahead of this date, and how to ensure proper parliamentary scrutiny. It is a reasonable question in relation to process. This is not about trying to frustrate the Government, as noble Lords have already commented. It is about how we assist the Government in avoiding chaos.

Certainly, this clause requires more than simply cataloguing instruments. It requires us to look into how courts have interpreted decisions and what impacts that will have. Whether it is the Law Commission or another body, the Government must ensure that proper time is allocated to research this so that, coming back to the letter, we have certainty, because businesses require certainty. We have had that debate. Workers require certainty as to their rights. Consumers require certainty. All those things have been impacted by decisions through common law.

Nobody disputes that there may be EU rights, powers, liabilities, obligations, restrictions, remedies and procedures that we could do better without. There is no doubt about that, but let us have a proper procedure for determining it. It cannot be right that we simply have a cliff edge with a dashboard that the Minister repeatedly refers to that does not even quantify them. I think there are 28 in the dashboard that you can consider impacted by Clause 3 out of the 4,000. There are clearly lots more examples.

I am attracted to Amendment 69A signed by my noble friend Lady Chapman, the noble Baroness, Lady Ludford, and the noble Lord, Lord Fox. It provides a clear structure and timetable for us to work through that will ensure a transparent way of dealing with people’s rights. That is the most important element of these groups of amendments. Let us not frustrate what the Government want, but let us do this in a proper way that does not lead to the confusion and chaos which undoubtedly Clause 3 would.

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In conclusion, this new clause would add unnecessary complexity to the important steps that the Bill is taking to ensure that the UK’s statute book meets the needs of the British people. I therefore hope that the noble Baroness, Lady Ludford, withdraws her amendment.

[Lord Kerr of Kinlochard (CB)]

I am grateful to the Minister for giving way. Before he sits down, I refer him to the second paragraph on page 2 of his letter—for which I was grateful, joking apart:

“From the end of 2023 our domestic courts should no longer apply the retained EU principles of interpretation … Instead, we expect them to apply domestic principles of interpretation”.


What are these domestic principles?

[Lord Callanan (Con)]

They are the domestic principles of interpretation that have been used by the courts since time immemorial: the normal procedures they use to apply their scrutiny of UK law. That is the point we are making. It is important that the general principles of EU law, which were introduced into UK law with our accession and which have applied to retained—[Interruption.] Will the noble Lord let me finish making my point before he intervenes again?

[Lord Kerr of Kinlochard (CB)]

In time immemorial, we were not members of the European Union. Is the Minister saying that we all should go back to pre-1972, and that anything that happened when Denning salt water was coming up the estuaries—anything that happened in the last 50 years—is to be ignored by the courts?

[Lord Callanan (Con)]

No, I am not saying that at all. Case law is not abolished: courts will still be able to take case law into account. We will use the power of restatement where necessary. Departments will look at whether the general principle of EU law, which we are abolishing with this legislation, affects the particular statutes that they are retaining, and they will adjust them accordingly so that the same policy effect is maintained. Of course I am not suggesting that we go back on what was agreed. The principles of case law will remain.

[Lord Kerr of Kinlochard (CB)]

We are talking about the courts and cases. Surely the courts will have to look at the domestic principles of interpretation which they are going to apply. Will they be given any guidance?

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[Lord Bellamy (Con)]

My Lords, the courts are always astute. They sort of intuitively know where they have to stop and where Parliament has to take over. That is a process that has been honed and refined for the past 100 years at least, but it does not prevent the courts moulding, refining and developing the common law. There comes a point where you cannot go further, but quite often in a court you can, especially when you have existing jurisprudence. It is quite early on in the development of a new technology. In the Warner case, we were talking about hyperlinks, graphic interfaces and all sorts of high-technology things with which I am sure your Lordships are extremely familiar, but it is a new area of law, and the courts, generally speaking, work with that until they find that they have gone as far as they can as a court and then Parliament takes over. With respect, I would not completely accept the observation of my noble friend Lord Hailsham that this is usurping Parliament.

[Lord Kerr of Kinlochard (CB)]

I think I understand the Minister’s argument about “proper” in new paragraph (c) in Clause 7(3), but is the wording of this not prejudicial because it assumes that retained EU law restricts the proper development of domestic law? It does not say that the court should consider whether and to what extent retained EU law restricts the proper development of domestic law. It says that it should consider the extent to which it does, assuming that it does. Would it not be better to go for non-prejudicial language, as well as, I hope, including the balancing language in Amendments 83, 85 and 88?

[Lord Bellamy (Con)]

As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.

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[Lord Bellamy (Con)]

I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.

Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.

[Lord Kerr of Kinlochard (CB)]

I am very grateful to the Minister for the skill with which he is trying to explain to a layman like me abstruse points of law. Could he give us a worked example, please? I was struck by what the noble and learned Lord, Lord Etherton, said about the potential cost to the country of a loss of clarity. Take his example of the copyright law of the United Kingdom, which, he said, was virtually exclusively based on EU law. What changes of circumstances do the Government envisage that the courts should be considering when they consider cases that are tried under the present British copyright law? The only change of circumstances I can think of is if the Government were to pass new legislation on copyright. I do not think that is the plan, but if they do not, what are the courts supposed to do? What change of circumstances would they have to consider?

[Lord Bellamy (Con)]

My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.

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[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, we have ensured that the Bill contains robust scrutiny mechanisms that will enable the appropriate scrutiny of any amendments or repeals of retained EU law made by the powers included in the Bill. The debate touched on two different things: we need to differentiate between the effects of Clause 10 and the application of pre-existing delegated powers contained in other Acts of Parliament, and the delegated powers included in the Bill.

Because of the points that have been made, I want just to touch on the scrutiny mechanisms. These include a sifting procedure that will apply to regulations proposed to be made under the power to restate and the powers to revoke or replace. This will afford additional scrutiny to the use of the power while retaining the flexibility of using the negative procedure where there are good reasons for doing so. We recognise the significant role Parliament has played in scrutinising instruments subject to sifting procedures previously and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill. Indeed, the Leader of the House of Commons has written to the chair of the European Statutory Instruments Committee proposing that the committee take on the role of sifting committee in the House of Commons to determine where the negative procedure may apply.

I wanted to give that background because there are these two different aspects to the debate, but I turn first to the clause stand part motion introduced by the noble Baroness, Lady Ludford, and supported by the noble Baroness, Lady Meacher. Clause 10 must stand part of the Bill because it provides the answers to two fundamental questions. First, is it right that technical regulations should be treated as equivalent to an Act of Parliament? Secondly, are this Government happy with the risk of these regulations sitting stagnant on the statute book? The answer to both, as we have argued all along, is no. Clause 10 modifies powers in other statutes to allow them to be used to amend or retain direct EU legislation and directly effective rights. Over 50% of retained EU law currently identified on the REUL dashboard—I agree with the noble Baroness on that figure—is retained direct EU legislation. It is comprised mainly of EU regulations in which the UK Parliament had no real say. This legislation often does not reflect the UK’s priorities or objectives—to drive growth, for example. We are currently forced to treat some retained direct EU legislation as equivalent to an Act of Parliament when amending it. This is not appropriate; it does not fit with this Government’s vision of REUL reform following the Brexit process, to which the noble Baroness, Lady Fox, referred.

I understand the concerns of the Delegated Powers and Regulatory Reform Committee, but we do need to think of the opportunity that Brexit affords, while maintaining necessary protections. In doing so, we must ensure that parliamentary time is used appropriately. Furthermore, relying purely on primary legislation to amend these technical regulations to meet the UK’s needs would take decades. It is of critical importance that we ensure that these mostly technical regulations do not remain static and can be updated, amended and reformed in response to events and new knowledge, using appropriate delegated powers. Without the measures in Clause 10, thousands of regulations will become stagnant and will be unable to stay up to date, react to new information or implement new international agreements without requiring an Act of Parliament.

I will now move on to a set of amendments relating to the delegated powers, starting with amendments—

[Lord Kerr of Kinlochard (CB)]

Before the Minister leaves the question of allowing Clause 10 to stand part, I am surprised at her disagreement with the Delegated Powers and Regulatory Reform Committee—a dangerously radical body containing wild revolutionaries such as the noble Lords, Lord Janvrin and Lord Goodlad, and the noble Earl, Lord Lindsay. Their view was clearly set out in their report: that Clause 10

“effects a significant transfer of power to Ministers”,

contrary to what was set out in the European Union (Withdrawal) Act 2018. The Act said it would be for Parliament to decide changes in primary legislation, rather than for Ministers to do so in secondary legislation.

I understand the argument the Minister is making, but it is not one likely to find much support across the House. We think we have a role in deciding what should be on the statute book; it is not simply for the Executive. I can see the point made by the noble Lord, Lord Hamilton—yet another dangerous radical—that it will take time so there will be, in a sense, continuing uncertainty. This is why I support an extension of the sunset deadlines—although that is not a sufficient cure, I think it is a necessary one for the Bill. But the noble Lord has to recognise that there is huge uncertainty now for economic operators across the country: they do not know which laws are to be amended, which are to be retained and which are to be extinguished. Once we know, perhaps it would be sensible to discuss how long it will take to make the necessary changes.

[Lord Hamilton of Epsom (Con)]

Surely the thing that concerns businesses is how legislation is going to be amended, not whether it is or not.