European Union (Withdrawal) Bill

Lord Kirkhope of Harrogate Excerpts

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

[Lord Cashman (Lab)]

This amendment is in my name and that of my noble friend Lady Kennedy. I agree wholeheartedly with what has just been said by my noble friend Lady Hayter. It seems to me we need the protections on the listed exclusions not least because the Government are intent, following Monday evening, on not retaining the Charter of Fundamental Rights or the right of action on the general principles of EU law. My noble friend Lady Kennedy and I merely want to make the important and explicit amendment that “human rights protection” is included. I feel there is no need for me to say any more than that.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I support the noble Baroness, Lady Hayter, on Amendment 21. I do not intend in my remarks to spend a lot of time with the actual list at the bottom of the amendment, because she put across very well the need to protect in particular certain things which do credit to this country and which will give us advantages in the future, whatever the status of this country is.

I certainly felt my optimism rising today as I heard the reactions of my noble and learned friend the Minister to the whole question of how EU retained law will be protected in future. He seemed to be suggesting at one point that there might be some sort of hybrid approach. I am not sure what that might result in, but in the meantime we are in a situation where, as I am sure noble Lords are aware, the law, however it is made, comes in various forms. It comes in various packages, some of which are packages of principle of law, while other parts of the packages are the levers or the actual technical means by which laws are implemented.

That is why the amendment specifically states that primary legislation should of course be the main means by which any modification could take place, but also that subordinate legislation would be appropriate in certain cases to deal with technical areas that are not appropriate for a primary approach. Indeed, it is very sensible that even subordinate legislation be dealt with in a manner that allows it to have the support and security afforded to the principal legislation itself. I think there are certain doubts—to say the least—about the list of retained EU law. We have had several debates today and previously about what is actually meant by retained EU law, and we need greater clarity as to precisely what components make up this category.

There was a debate in another place on a very similar area and amendment. It was a very strong debate, to which a considerable number of people contributed, and real concerns were expressed about the way in which retained EU law, however it is finally listed, could be supported. As I said, I will not spend any time on the main areas that have been listed, but the Government have given many assurances—which I welcome—that the main areas of retained law will be specially protected and that they regard them as terribly important. That is only being affected, in a negative sense, by remarks from legislators who in the main do not form part of our Government but who nevertheless have been making statements indicating that, almost with immediate effect from its arrival, the retained EU law will be either tampered with or destroyed. That has meant that a considerable number of people currently affected by the law are seriously worried about what might happen to those areas that are so important to our public and social life. The reasons for this amendment are to make sure that the Government are aware of the concerns and to ask them to do their best to put in place the security necessary to protect these areas on an ongoing basis. I support the amendment.

[Lord Pannick]

My Lords, I too support Amendments 21 and 22, which would restrict the powers of Ministers to modify retained EU law by secondary legislation in the contexts that have been mentioned: employment rights, equality rights, health and safety, consumer standards, environmental standards and human rights. All of those are vital areas. It is important in considering these amendments to recognise the breadth of the secondary legislation powers that are being conferred on Ministers under the Bill—and not just by Clause 7, to which we will come next week or the week after. The point is made by the organisation ClientEarth in a helpful opinion, which I commend to the Committee, written by Pushpinder Saini QC. He draws attention—and I draw the attention of the Committee—to some provisions that are tucked away in Schedule 8 to the Bill, on page 55. Paragraph 3(1) refers to existing powers in legislation to make subordinate legislation. It says:

“Any power to make, confirm or approve subordinate legislation which was conferred before exit day is to be read, on or after exit day and so far as the context permits or requires, as being capable of being exercised to modify … any retained direct EU legislation”.


That is a remarkably broad power. On page 56, at paragraph 5(1) of Schedule 8, there is a similar power for any future power to make subordinate legislation. Of course, the word “modify” has a very broad meaning, because it is defined in Clause 14(1), on page 10, to include amending, repealing or revoking.

That gives context to the importance of these two amendments. Can the Minister confirm that this really is the Government’s intention? Schedule 8 does not have the two-year limitation period that Clause 7 has. Clause 7 applies only for two years, which is bad enough, but at least it is time-limited, whereas Schedule 8 is not. Is it really the Government’s intention to confer power on Ministers to repeal by secondary legislation—with all the difficulties that poses for adequate scrutiny by Parliament—any employment rights and any of the other important protections mentioned in Amendment 21 and 22 in so far as they are part of retained EU law, which as we have heard covers the Equality Act and many other Acts in so far as they derive from, or are linked to, EU law obligations?

European Union (Withdrawal) Bill

Lord Kirkhope of Harrogate Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Lord Warner (CB)]

My Lords, I rise as a co-signatory to this amendment briefly to support what the noble Baroness, Lady Hayter, said. In Committee, she gave an extensive explanation and justification for this amendment. She has done so again today, and I shall not repeat those arguments.

The two words I want to emphasise are “vulnerable” and “future-proofing”. The areas covered in this amendment are particularly vulnerable to backsliding from the existing situation, which has often been hard won over many years. That is why they have been singled out for enhanced protection in this amendment.

The second word is “future-proofing”—there is a hyphen in there, so it is a second word. The worry is not about the position just after Brexit. This amendment is about ensuring that these rights and protections cannot be tampered with in future by the casual use of statutory instruments. For me, it is the way that the Government have gone about the Brexit process and the mood of reluctance to be transparent that have led so many people to distrust their intentions. That is why we have so many amendments like this down on Report.

When I was a boy, my dad used to take me to see the Lord Mayor’s show. I was always fascinated by the man at the back of the parade with his broom and pan sweeping up the horses’ droppings. On this Bill, I sometimes feel that your Lordships’ House is having to emulate that gentleman a little too often.

[Lord Kirkhope of Harrogate (Con)]

My Lords, as one of the signatories to this amendment and, indeed, a signatory to the previous amendment in Committee, I want to make a very short intervention in support.

I realise that we must look at this in the context of the overall position of retained law, and I know that the Minister has written to us and that at a later stage on Report—on Amendment 26—he will deal with the general question of the status of retained law and will deal with subordinate legislation on Schedule 8. Like the Minister, for many years I was engaged in the process of drafting some of these things in Europe. These matters have been picked because they are particularly important within the context of the protection that has been afforded to them under European law until the point at which this country leaves the European Union. They are sensitive areas. The one that I feel most interested in is environmental standards and protection. It is important that they are given some separate consideration. I entirely agree with what the noble Baroness said because they are also politically sensitive to the extent that, without some form of protection, they are very much at risk. Indeed, I would go further and say that, without some of these protections, maintaining the same characteristics and having that protection in our negotiations on our future relationship with the European Union would be at a severe disadvantage were these matters to be threatened or to look as if they were about to be threatened. It is therefore all the more important that we have a special approach to them.

The last time we raised this matter, in Committee, I received a very interesting response, as we all did. It was essentially very legalistic and referred to issues of hybrid approaches and so on. I know hybrid is the in word at the moment in relation to other things, but so far as I can see, the Government have not come forward with any particular approach which would satisfy those of us who are concerned about these matters. I am therefore looking forward with great interest to hearing my noble friend’s response to see whether the Government will perhaps understand the concerns and react to them in a positive way.

[Baroness Smith of Newnham (LD)]

My Lords, I am one of the signatories to this amendment. As other noble Lords have said, it is about protection and future-proofing. I was initially going to say that the noble Baroness, Lady Hayter, had said it all and perhaps I did not need to rise, but I want to support the point that Amendment 11A from the noble Lord, Lord Low of Dalston, makes: that human rights protection is clearly also important.

I reassure the noble Baroness, Lady Oppenheim-Barnes, that this is not about saying EU legislation has to be enshrined in UK law in perpetuity entirely unchanged. The amendment says there are certain aspects of EU law that we believe are hugely important and it should not be possible simply to amend them by statutory instrument, nor for Ministers to engage in any sort of casuistry to change them. If Parliament wished to amend the legislation then it would be possible, but it would be subject to very strict guidance about the approach that it took. Surely the amendment would allow Parliament to take back control but also ensure that the protections we currently enjoy as part of the EU would be retained.