European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

[Lord Callanan]

No, the treaty will be a separate piece of legislation when we negotiate it. I hope I have tackled most of noble Lords’ questions and they will be able to withdraw or not move their amendments.

[Lord Pannick (CB)]

May I just ask the Minister about his comments on the European Court of Justice? Is there anything in the case law of the ECJ that justifies the Government’s reluctance for it to continue to be the dispute resolution procedure for the matters we are discussing?

[Lord Callanan]

We have been clear that respecting the Brexit vote means delivering on having control of our own laws. Our Supreme Court will be the ultimate arbiter of our own laws and it would not be appropriate to submit ourselves to the jurisdiction of a foreign power.

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[Viscount Hailsham]

That would have to get through both Houses, which would be at least some check on the process. The point I am making is not quite the point that my noble friend has interpreted. I am saying that, if the charter is to be incorporated into domestic law, it has to be the subject of parliamentary scrutiny and amendment, and that is the only basis on which the charter should be incorporated into domestic law.

I accept the noble and learned Lord’s point that a number of aspects of the charter are entirely irrelevant and are hinged on our membership of the Union. Articles 44, 42, 43 and 39 are examples of that. There are also articles in the provision of the charter that many of us would disagree with. The noble Baroness, Lady Deech, has indicated that she does not like many of them, and I happen to agree with her. I heard my noble friends Lord Howard, Lord Lamont and Lord Blencathra chuntering away, and I agree with them: there are many things in the charter with which I disagree. But I am saying that if it is to be incorporated, it should be incorporated in such a way as to enable this House to scrutinise each and every one of its provisions and amend as appropriate.

I remind the Committee that one reason many noble Lords and others wish to withdraw from the European Convention on Human Rights is that the judge-made interpretation of the text is incapable of amendment by Parliament. I wish to avoid that criticism being made of the charter if it is to be incorporated. The suggestion in my amendment to make the charter, if incorporated, subject to parliamentary scrutiny and amendment is perhaps the only example in this sorry business of being able to cherry pick, or to have your cake and eat it.

[Lord Pannick]

My Lords, may I respond to some of the objections that have been raised to the points made by the noble and learned Lord, Lord Goldsmith, with whose speech I agree entirely?

Many of the objections—those raised by the noble Lord, Lord Lamont, are typical—are to the content of the charter or to its implications. The Committee should appreciate that that is not the Government’s position. The Government’s position is not that they seek to exclude the charter because its contents or implications are objectionable. Their position is very clear indeed. If noble Lords read the debates in the House of Commons or look at the report of the Constitution Committee, they will see that the Government’s position is simply that we do not need the charter in this Bill because its contents and implications are already contained in the retained EU law that is being read across through this Bill. So many of the objections that the Committee is listening to are simply beside the point: they are not the Government’s objection to the charter. The Government’s objection to the charter—it is unnecessary because its contents are already part of retained EU law—is, I am afraid, simply unsustainable. I will not take up time on this, because the hour is late, but if any noble Lords are doubtful about it, I simply suggest they read the helpful opinion by Jason Coppel QC, in which he clearly sets out the equality and human rights position. That is the first point.

Turning to the second point, I am always reluctant to disagree with my noble friend Lady Deech, because she taught me law at Oxford, but I have to disagree with her on this occasion. Her objection, as she explained it, and I hope I do not misrepresent her, is that she is concerned that the charter will enable the courts to overturn legislation enacted by Parliament—she is nodding. But I am sure she appreciates that that is inherent in this Bill. The whole point of the Bill is to read across as retained EU law the content of existing EU law that is applicable to this country and to give it—see Clause 5—supremacy. Supremacy means that it takes priority, as in the Factortame case, over anything enacted by Parliament which is inconsistent. So the suggestion that we must oppose the charter because it gives courts that power is simply inconsistent with what the Bill does.

Turning to the third objection, my noble and learned friend Lord Brown of Eaton-under-Heywood was concerned about whether the inclusion of the charter would, in some way, give a power that expands the role of the charter further than under EU law. My simple answer to that is no, of course it does not. The charter is being read across only because it is part of existing EU law, and it comes across as retained EU law. It will not have any greater force than it already has as part of EU law.

[Lord Brown of Eaton-under-Heywood]

In those circumstances, does my noble friend agree that the result of that is that we are henceforth, instead of treating retained EU law as part of domestic law—having discarded the separation and shed the notion that it is a distinct body of law—still going to have to wrestle with all the difficulties inherent in distinguishing operations or actions pursued in the ambit of EU law from those that are not? Will that problem continue into the distant future?

[Lord Pannick]

My answer is very simple: yes, of course. The whole point of the Bill is to read across the EU law which currently applies to this country and for it to continue to apply. That is the Government’s objective. It is their objective because they—very sensibly, in my view—wish to ensure legal certainty and clarity on exit day. That is exactly the legal position. It is not my idea; it is the Government’s intention in this Bill.

As to all the concerns about what the charter might or might not do, one should bear in mind that the charter has been applicable in the courts of this country for many years. No one has suggested that there is some case or principle which is so objectionable that we need now to make an exception for the charter, when the Government’s intention in the Bill is to read across all retained EU law to ensure a functioning statute book that preserves the legal position and ensures clarity, certainty and continuity. That is what this Bill is about.

[Lord True (Con)]

There is, I think, a fourth question. As a layman, I have been listening for 51 minutes to extensive legal argument on these questions—and who am I to judge, in a sense?—and I was persuaded by the distinguished arguments of two former Law Lords that I heard. The noble Lord, Lord Pannick, referred to three arguments but there is surely a fourth argument which has not been adduced by any of the noble and learned Lords who have spoken, and that is that 17.4 million British people voted to leave the European Union, and that means coming out from under the jurisdiction of entities which are not subject to the Crown, Parliament and UK law.

The noble Lord, Lord Pannick, smiles and laughs. All the arguments that we have heard in this Chamber over the past two days in Committee come from those who do not wish that to happen, but the fact is that the British people sought a future in which they and their Parliament will make UK laws, and UK judges, under the Crown, will judge those. We have no need of any charter which has been made outside, something that the noble and learned Lord, Lord Goldsmith, argued for repeatedly when he was Attorney-General.

[Lord Pannick]

I am grateful to the noble Lord. The reason I am smiling is that he clearly has not read this Bill. The Government’s Bill reads across the entire content of EU law that applies as at the exit date; it becomes part of our law. It is the whole point of the Bill.

[Lord True]

If I may—

[Lord Pannick]

I am sorry; let me complete the point. The noble Lord has made a point and he is simply wrong. The Government’s Bill reads across the whole of EU law. It removes the jurisdiction of the European Court of Justice—I do not suggest to the contrary—and the amendment of the noble and learned Lord, Lord Goldsmith, has absolutely nothing to do with the role of the European Court of Justice. It will be the role of our courts and our judges to decide from now on the meaning and effect of the retained EU law which this Bill reads across. It will then be in later legislation for Parliament, as it sees fit, to amend or repeal that law. But as the noble and learned Lord, Lord Goldsmith, indicated, the Prime Minister said that this Bill is not an occasion for changing the law, it is an occasion for ensuring that on exit day we have a workable, certain, continuing system of law. The real question is why this Bill should make an exception for one element of European Union law, the charter. There is no justification for that whatsoever.

[Baroness Deech (CB)]

My Lords, it does the opposite of what my brilliant former pupil the noble Lord, Lord Pannick, has said. The inclusion of the charter brings with it uncertainty. It is a Trojan horse because if you carry on applying it, its meaning depends on the evolving case law of the ECJ, which has an objective of bringing further integration and other objectives to do with Europe that are not our objectives. Our judges have said that they want certainty after Brexit, but to include the charter, which is evolving all the time, without our scrutiny will give our judges sleepless nights because they will have to follow the twists and turns in EU law. I come back to the fact that the nub of this is that it will plainly give our judges the right to set aside and invalidate UK law. The noble and learned Lord, Lord Goldsmith, mentioned with approval the Benkharbouche case, where part of our sovereign immunity law was set aside by the Supreme Court on the basis of charter supremacy. That was actually dangerous because if other countries start setting aside immunity law when dealing with our diplomats, we will be in a very difficult situation indeed. I would not assess the Supreme Court by the outcome of what it says; we assess courts by the way they are appointed and the integrity of our judges. The retention of the charter is a recipe for confusion, uncertainty and the setting aside of British law according to ECJ judgments.

[Lord Pannick]

I am sorry to say to the noble Baroness that that is exactly what this Bill achieves in relation to all other retained EU law which is read across. This will be under the control of British judges. Under the Bill it is entirely a matter for them what weight, if any, they choose to give to judgments of the European Court of Justice. The charter of rights is no different from any other provision of EU law in that respect. The noble Baroness mentioned certainty. What I think provokes uncertainty for judges is the approach in this Bill. It is not simply that the charter of rights is excluded by Clause 5; the clause goes on to say that undefined,

“fundamental rights or principles which exist irrespective of the Charter”,

are retained. There is a conflict in the approach taken on this issue. I suggest to noble Lords that the correct approach is that which has been recommended to the Committee and to the House by your Lordships’ Constitution Committee: that there is no justification whatever for distinguishing between the charter of rights and all other aspects of retained EU law. I support the noble and learned Lord, Lord Goldsmith, in what he said.

[Lord Wigley (PC)]

My Lords, I rise to speak to Amendment 35 standing in my name and that of the noble Baroness, Lady Jones of Moulsecoomb, which would leave out subsections (4) and (5) and insert the words as set out in the amendment. The objective of Amendment 35 is to retain the charter rights in UK law and afford them the same level of protection as those in the Human Rights Act. It has similar objectives to some of the other amendments that have been proposed. I must admit that I address the House on these issues with some trepidation because I am not a lawyer, although I have taken the advice of lawyers in drafting this amendment.

The amendment provides for what I hope is a sensible and responsible approach to Brexit that respects the referendum decision but does not sacrifice rights and protections on the altar of ideology. Removing the European Charter of Fundamental Rights from EU retained law runs counter to the stated purpose of the Bill, which is to facilitate the wholesale transfer of EU law into the domestic statute book. It also contradicts the Government’s assurances that the same rules will apply on the day before exit as on the day after. The Government’s justification for this anomaly is to claim that the charter is unnecessary and that its omission will not result in any loss of substantive rights protections.

In an attempt to support their public assurances to that effect, the Government have since published a right-by-right analysis that they say demonstrates that each right can be found in domestic law. The analysis is unpersuasive. According to Liberty and Amnesty International, it is perfectly possible to retain the charter and deal with any redundant sections after exit just as with the rest of retained EU law, as has already been mentioned. The Equality and Human Rights Commission has obtained the opinion of senior counsel Jason Coppel QC on the Government’s analysis of the charter. His advice is that the loss of the charter will lead to a significant weakening of human rights protection in the UK. This is because, first, there will be gaps in protection, for example in relation to children’s rights, data protection and non-discrimination. Secondly, many rights will no longer be directly enforceable, leading to further gaps in protection. Thirdly, many remaining rights could be removed by Ministers exercising delegated powers.

A particular concern that I would like to highlight is that Brexit will remove any children’s rights and safeguards currently offered by the European Charter of Fundamental Rights, which imposes a constitutional obligation on member states to adhere to children’s rights standards when implementing EU law. The EU’s Court of Justice now routinely refers to the charter when adjudicating on cases involving children.

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[Lord Lamont of Lerwick]

Against the noble and learned Lord’s will. There was also an attempt to get an opt-out, which the European Court of Justice said was not valid. I see that the Minister is agreeing with me. I believe that is a correct account of what happened. It was struck down. The case in which it happened was, I think, Aklagaren v Hans Akerberg Fransson.

[Lord Pannick]

Would the noble Lord accept that there are many areas of EU law which this country has opposed but which have nevertheless become part of EU law? This Bill seeks to exclude none of them from retained EU law, other than the charter. Why is that?

[Lord Lamont of Lerwick]

That is very much my argument. For reasons that I wish to develop, I agree very much with the noble Baroness, Lady Deech, and what was said by my noble friend Lord Faulks about the confusion and conflict that this will cause between the role of the European Court of Justice and our own courts. The President of the Supreme Court has already called for further clarification of the relationship the Supreme Court will have with the European Court of Justice. It seems to me, for reasons I am about to give, that this would be made even worse if we incorporated the charter into the Bill and into UK law.

The retention of the charter would lead to real problems of uncertainty and confusion. Above all, retaining the charter would give the ECJ even more continued influence over our courts. I accept what the noble and learned Lord has said, that there is going to be a relationship for a while with the jurisprudence of the ECJ, but incorporating the charter will give much more opportunity for what people have called judicial adventurism from the European Court of Justice, as it continues to expand the interpretation of the charter. This is not an obsession of Conservatives. I draw the Committee’s attention to what the late Lord Bingham, I think, said in evidence to the House of Lords EU Committee in 2016. He said that although,

“the European Court of Human Rights is a very benign institution … the European Court of Justice in Luxembourg has predatory qualities to it that could be very inimical to some of our national practices”.

That is a reference to the expansionist activities of the ECJ. The charter, as many people know, is extremely loosely worded. The risk of leaving the charter in place is that it allows the ECJ, while it still has jurisdiction over us and our Supreme Court, to expand the charter into new areas. I am not suggesting that the rights we have are frozen for ever or should not be expanded, but merely that that is something that should be decided in this country by our Parliament.

I am also concerned, because of this and the expansion of activities of the ECJ, that if the charter were incorporated our courts would acquire the power to strike down statute on the basis of incompatibility with the charter, which is the point that the noble Baroness, Lady Deech, was making. The noble Lord, Lord Pannick, referred to the Factortame case, which was a notorious example where an Act of Parliament was actually struck down. We do not want to create another situation in which domestic courts can strike down Acts of Parliament.

It is the European Court of Justice that interprets what the charter means within the European Union, so if the charter is incorporated into law, what relationship is then going to exist between the Supreme Court and the ECJ? As the ECJ continues to develop its interpretation of the charter, we would be on a road where we had to take it more and more into account. On the basis of what has been said, we must avoid that confusion.

If there are gaps in the rights, we have an opportunity to incorporate them with primary legislation. For example, people have been saying in some of the debates that there are various matters relating to the environment that are not covered. However, we will have a new environment Act and a new environment agency. That seems to me to be the way to cope with any rights that are not fully covered, and it is far better to avoid the confusion of incorporating the charter into UK law.

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[Lord Davies of Stamford]

My Lords, I am being persistent this evening because I want to point out the glaring contradiction in the views that have been put forward in support of the Government and of the Bill as it currently stands. The noble Baroness, Lady Deech, says the Charter of Fundamental Rights is a pernicious and dangerous document—“dangerous” was her word—that would lead to courts in this country setting aside laws that they did not like, which would be scandalously contrary to British traditions of constitution and law. On the other side, we have had people, and the noble Lord, Lord Lamont, is the latest example of this, saying the reason why we cannot have the Charter of Fundamental Rights in the Bill and transferred into English law is that it is unnecessary and would be confusing because all the rights are there and some of the rights are already in the corpus of British law. Noble Lords must make up their minds: they cannot say something is a radical and pernicious measure with substantial negative consequences but at the same time say that it has no effect at all and is merely otiose. There is a fundamental contradiction there. The noble Lord, Lord Pannick, noticed the same thing but was not quite so explicit about it as I have been.

[Lord Pannick]

I did my best.

[Lord Davies of Stamford]

There is a confusion in this country that comes up quite frequently. We like to think—we are brought up to think it—that we do not have a written constitution in this country and we do not have constitutional laws. That is totally untrue: the Bill of Rights is a constitutional law; in my view the Bill that we are now trying to repeal, the European Communities Act, is a constitutional law; and the Human Rights Act is certainly a constitutional law. By “a constitutional law”, I mean a law that is generally regarded as foundational and is prayed in aid before the courts and referred to in court judgments across a whole range of subjects. Because of that contradiction, we do not really recognise what is going on and we get ourselves into a frightful confusion.

Unlike the noble Baroness, Lady Deech, I am not shocked and offended by the idea that a court could put aside a Bill that was contrary to existing law. The remedy, of course, is quite simple: Parliament can change either the existing law or the previous one. The noble Viscount, Lord Hailsham, my Lincolnshire neighbour, came out with the right solution when he said that the check and the important constitutional protection against a Government with a parliamentary majority acting entirely irresponsibly or even tyrannically is that any Bills they put forward would have to go through both Houses. In that context, one hopes that the House of Lords would act as a guardian of the constitution and be prepared to stand up to the Government and wait for them, if necessary, to bring in the Parliament Act to override it. That would be a considerable check and balance, and it is a very important role of this House that we are there as a long-stop in such circumstances. The noble Viscount, Lord Hailsham, came up with the right solution and I am sorry that I did not sign his amendment, but I certainly approve of it very much, and if he comes forward with something like it at Report, I shall be happy to support it.

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[Lord Keen of Elie]

We have considered that analysis, and that is why I indicated that we were still looking at this. As I said, if rights are identified which are not in fact going to be incorporated into our domestic law in the absence of the charter, we will look very carefully at ensuring that those are not lost.

Clause 5(5) makes it clear that, notwithstanding the non-incorporation of the charter, retained EU law will continue to be interpreted by UK courts in a way that is consistent with the underlying rights. I hope that addresses to some extent the issue raised by the noble and learned Lord, Lord Wallace, in that context. Interpretive provisions will retain a means by which we can look at these rights in the proper context.

With regard to those who have expressed concerns about this Bill resulting in a loss of substantive rights, I repeat—as the noble and learned Lord, Lord Goldsmith, has done, at least prior to his recent Pauline conversion—that it is not necessary to retain the charter to retain those fundamental rights. If we see that there is a potential loss of such fundamental rights, we will address that, and that is what we have indicated.

[Lord Pannick]

I put it to the noble and learned Lord that there is no other area of retained EU law where the Government have carried out this exercise or said that we do not need to read across a particular provision because it is already in domestic law. Why are they making an exception of the charter?

[Lord Keen of Elie]

Because this is the only case in which we have identified that situation. There is no other reason for proceeding in this way except for that.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

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

Moved by

[Lord Pannick]

15: Clause 2, page 1, line 12, leave out paragraphs (b) to (d)

[Lord Pannick (CB)]

My Lords, Amendment 15 arises out of the report of your Lordships’ Constitution Committee published on 29 January which I commend to the Committee. The amendment has been tabled in the names of four members of the Constitution Committee, myself and the noble Lords, Lord Norton of Louth and Lord Beith, and our much respected chairman, the noble Baroness, Lady Taylor of Bolton.

One of the matters about which we expressed concern is whether the Bill as currently drafted will ensure, as the Government intend, the clarity and certainty that is required of the law as from exit day. I should emphasise that the amendments to the Bill which derive from the Constitution Committee’s report are being moved as probing amendments. We believe that we have identified problems that require debate and consideration by the Government, but we are not suggesting that our proposed solutions to these difficult problems are the last word.

Amendment 15 addresses what we believe to be the first fundamental difficulty with the approach adopted in the Bill. Clause 2 includes within the scope of the concept of EU-derived domestic legislation not merely those regulations which have been made under powers contained in the European Communities Act 1972 that Clause 1 is of course going to repeal, it also purports to include within the scope of EU-derived domestic legislation other primary or secondary legislation which has been enacted by normal procedures—that is, not using the powers in the 1972 Act but legislation that was enacted for the purpose of implementing our EU obligations or which relate to them. A good example is the Equality Act 2010. For the purposes of this Bill, Acts of Parliament such as the Equality Act are to be treated as EU-derived domestic legislation even though they would continue to be part of domestic legislation without the Bill. As I understand it, that is the purpose of Clause 14(6).

The scope of Clause 2 matters for two reasons. First, if an enactment falls within Clause 2 and it is therefore by reason of Clause 6(7) retained EU law, the delegated powers which Ministers will have under Clause 7 will apply. The Committee will come to consider those delegated powers in due course because they are very extensive. A number of amendments have been tabled in relation to them. The other reason this matters is that the consequence of a provision being retained EU law is that the supremacy principle under Clause 5, which again we will come to, also applies, so the retained EU law such as the Equality Act will take priority over other laws which are enacted up until exit day. Clause 2 therefore poses real problems for legal certainty because some of the provisions of the Equality Act, for example, will have been enacted for the purpose of implementing EU law obligations while some will have been enacted for other purposes. Some of the sections of the Equality Act relate to our EU law obligations while others do not.

Given that, perhaps I may ask the Minister, the noble and learned Lord, Lord Keen, who I believe is going to respond for the Government on this, whether Clause 2 means that if any part of the Equality Act, as an example, was passed in order to implement an EU law obligation or relates to one, the whole of the Equality Act is within the scope of Clause 2 as retained EU law, or does Clause 2 mean that only those provisions of the Equality Act which implement an EU law obligation or are related to it are within Clause 2? I ask this because the language of Clause 2 focuses on the enactment, which suggests a statute by statute approach. If that is right, Ministers will be conferring upon themselves through Clause 7 a very wide power to amend by delegated legislation provisions of the Equality Act or other Acts in which provisions were enacted for other purposes. Indeed, if Clause 2 applies to the whole of the Equality Act then the supremacy principle will give priority to the whole of the Equality Act over other legislation enacted up until exit day. We need to know the answer to that question.

The Constitution Committee’s view is that the concept of EU-derived domestic legislation in Clause 2 ought to be confined to those enactments made under the powers conferred in the European Communities Act, which is what the Bill is all about—powers that the Bill would repeal. That would have the virtue of clarity and certainty. It would cut down the scope of the delegated powers that Ministers will enjoy under Clause 7 and limit the supremacy principle. The Constitution Committee respectfully suggests that that approach accords with constitutional principle. It said at paragraph 22 of its report:

“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’ by clause 2 and subject to the powers of amendment in clause 7”.


The Bingham Centre for the Rule of Law, which has made very valuable observations on these issues, has pointed out, and I agree, that if the Committee were to amend Clause 2 in this respect, consequential changes would be needed to Clause 6 to ensure that provisions in the Equality Act, for example, that implement EU law will continue to be interpreted by reference to judgments of the Court of Justice in Luxembourg delivered before exit day.

These are difficult issues but the Constitution Committee suggests that they are important. I look forward to hearing the Minister’s response. I beg to move.

[The Lord Speaker (Lord Fowler)]

My Lords, I should notify the Committee that if Amendment 15 is agreed to, I cannot call Amendment 16 by reason of pre-emption.

[Lord Adonis (Lab)]

My Lords, the noble Lord Pannick, is a great expert in these matters. Could he give the Committee the benefit of his advice on whether he believes that converted law under Clause 2 has the status of primary or secondary legislation?

[Lord Pannick]

That is a very important question that we are coming to in later amendments. The Constitution Committee addressed that question. It has advised the House that one of the defects of the Bill, it respectfully suggests, is that it does not address that vital question and that legal uncertainty will be caused without it being addressed. The Constitution Committee suggested that retained EU law should be given the status of primary legislation, but there is a variety of views on this. The committee advised—I do not speak for the committee, but I am reporting what its report said—that this issue has to be addressed in the Bill. We are coming to it in later amendments.

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[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.

Amendment 15 withdrawn.

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[Lord Wigley (PC)]

I support the amendment of the noble Baroness, Lady McIntosh, which seeks to clarify the status of EU directives which will be “adopted, but not implemented” on the day we exit the EU. The Government have repeatedly stressed that the purpose of the Bill is to provide legal certainty. Whichever side of the Brexit debate we take, clearly, that is a worthy and necessary objective. That being so, I am truly baffled that in this instance the Bill totally fails to give that clarity. Everyone affected or potentially affected by EU legislation that has been adopted but not implemented needs to have absolute certainty as to where they stand.

Amendment 18, if passed, would allow Ministers to treat EU directives adopted before exit day to stand, for those purposes, as if the UK had not left the EU. I understand from a House of Commons briefing that no fewer than 23 directives have already been published with implementation deadlines which fall after 29 March 2019. Several of these would enhance the lives of UK citizens. For example, one is aimed at strengthening restrictions on firearms, which are currently permitted to move freely within the European single market. If the Bill stands unamended, can the Minister clarify whether firearms will be controlled when they cross the north-south border in Ireland, for example? Another such directive aims at limiting the exposure of employees to dangerous substances in the workplace, such as carcinogens and mutagens. I will not elaborate but clearly there is an arguable case for saying that such safeguards should be part of UK law. Even more so, there is a crying imperative that people know where they stand on such matters.

[Lord Pannick]

My Lords, I am doubtful about this amendment for two reasons. The first is that the whole purpose of the Bill is to ensure that a snapshot of our obligations under EU law is transposed into domestic law as at exit day. If, as the amendment suggests, retained EU law contains the directives which are not yet in force, the purpose of the Bill will not be accomplished—something more will be read into EU law. However, it is not simply a technical matter; it is also a question of uncertainty. If the amendment is included in the Bill, one will not know at exit day the scope of retained EU law, as that will depend on what happens in Brussels thereafter. A directive which has been adopted but has not yet come into force might be amended before it comes into force, or it might never come into force. Therefore, I am very doubtful that legal certainty is accomplished by this amendment or that it is consistent with the objectives of the Bill. I entirely understand that it may be desirable to include within English law matters of this sort but it is certainly not consistent with the objects of the Bill.

[Lord Lea of Crondall (Lab)]

My Lords, perhaps I might check that, in interpreting the clause as it now stands, it is not possible for there to be a freeze on implementation by a particular exit day, whereby Ministers can cherry-pick the pieces of legislation they want to take through. That was not the intention. Can the Minister comment on that possible consequence of the exit date?

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[Lord Deben (Con)]

My Lords, I draw the attention of the House to my declaration of interests. I declare an interest in the question of waste and I would like to follow on from the noble Baroness.

I am inclined to follow the comments of the noble Lord, Lord Pannick, in dealing with this amendment. My problem with the snapshot concept—although it is the concept—is that it is rather fuzzy at the edges. Unless we think carefully through this, we will find that if we leave the European Union we may have signed up to obligations which we have not had time to carry through but which we intended to carry through. We may also sign up to obligations which, perhaps in retrospect we did not intend to carry through. However, that is unlikely. We may also have signed up to obligations where we had not worked out how we were going to carry them through. So there is bound to be uncertainty at this stage.

I emphasise what the noble Baroness has said: we have worked extremely hard across the board on a number of packages, particularly those concerned with the environment. Her Majesty’s Government have been enthusiastic about most of the elements that that contains. The noble and learned Lord who has replied to the previous two debates has been extremely helpful, not only in explaining to the House where the Government are but in giving us real hope that they will look carefully at the real questions we have raised. It is not a question of whether or not you are in favour of Brexit but of how we get this right. As the Minister has been kind and generous in that way, I hope he will help us to see what we should do. I say to my noble and learned friend that I do not think we should do this, but it is clearly something we have got to do if people are to know where they will stand.

[Lord Pannick]

The noble Lord is undoubtedly right that there will be instruments in Brussels to which we have contributed and which we would wish to incorporate into domestic law. This Bill does not prevent that. It is designed to provide the best snapshot possible, and Parliament is perfectly entitled to—and no doubt will—adopt many other later instruments and incorporate them in appropriate form into domestic legislation.

[Lord Deben]

I agree with the noble Lord, Lord Pannick, on that. However, the problem comes when an agreement is in Brussels and has been agreed by us but the implementation date comes later. That is the part I am particularly concerned with.

I am also concerned to take the opportunity to say to my noble and learned friend that one of the ways in which this Bill can be more readily acceptable is for the Government to be clear with the House. If there were such circumstances, would the Government be prepared to say now that they would seek to implement those things to which they had signed up in advance in a form they would choose? That is not an unreasonable thing to ask the Government to do. Otherwise we will go through this period—it seems as though it will go almost to the end before we know what is going to happen—of negotiating, discussing, agreeing and indeed voting on some of these matters, and no one will know whether, having voted for them, we were then willing to accept them into our own system and law and implement them, having signed up to them.

It would be helpful for all of us who are trying to work these things out and trying to run businesses to remove that uncertainty by committing the Government to say that they will implement what they have signed up to, in a form which they may choose, but under British law.

--- Later in debate ---

There may also be directives that have been adopted which have not been the subject of implementation by the exit date because the transition period extends beyond the exit date. Those will not, therefore, have been taken into our domestic law and will not form part of retained EU law at the exit date. So, yes, there may be directives that have been adopted but not implemented by the exit date, and those directives will not form part of our domestic law. If, however, a directive contains matters that the Government consider appropriate to form part of our domestic law, there is no reason why the Government should not then proceed to enact appropriate domestic legislation to take into our domestic law those very matters.

[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.

--- Later in debate ---

[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.

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[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?

[Lord Davies of Stamford]

My Lords, the support of the noble Lord, Lord Kirkhope, for the amendment will be welcome. It reflects what I have always thought was a considerable cross-party consensus in this country in favour of a reasonable amount of regulation. Of course there are fanatics. Professor Minford is a very good example of an intelligent man who believes if we got rid of all regulation it would be a very good thing, and he has made calculations of the economic benefits to the country if literally all regulations—health and safety, environment, consumer protection and employment protection and so on—were simply abolished. However, he is rightly regarded as a fanatic in his own profession and indeed in politics. There are a number of people on the right wing of the Conservative Party who have always been very close to that way of thinking, and it would be quite terrifying if the Government, under the camouflage of taking powers apparently needed to bring about Brexit, found themselves in possession of instruments that meant that without any real let or hindrance they could simply take an axe to the protective regulation that has emerged in this country over the decades.

All civilised countries have to have a reasonable amount of regulation in these fields or they very rapidly cease to be civilised. One of my great worries about leaving the EU is that we will probably end up with more regulation that in many cases will be much less rational: it will be the result of a campaign by the Daily Mail and weak Ministers giving in, saying, “Oh goodness, let them have what they want”, and regulating on this or that. There is a much greater chance of that happening when we are no longer part of a body of 28 countries that are forced to look at these issues in realistic terms and come to some agreement on the subject. That is very worrying.

--- Later in debate ---

[Lord Faulks]

The Human Rights Act is expressly preserved as a result of the changes that the Bill is going to bring about. The charter is, of course, ruled out by the Bill at the moment; I suppose, from what the noble Lord says, this is a way in which to bring it back in under the rubric of “human rights protection”—but, of course, “human rights protection” is potentially a varied and wide description.

This amendment is an absolute recipe for confusion and litigation. Although I understand the feelings of insecurity about what a Government might have in mind, it is not consistent with the overall objective of this legislation, which is to provide clarity at the moment when we leave the European Union.

[Lord Pannick]

Given the noble Lord’s objections to the drafting of this amendment, does he sympathise, as I do, with the noble and learned Lord, Lord Falconer of Thoroton, with the idea that a way can be found to restrict powers of Ministers by subordinate legislation to change retained EU law? Will he express the hope that the Government will think very carefully about that and bring forward an amendment before Report?

[Lord Faulks]

I am grateful for that intervention. I am certainly receptive to the possibility of some restrictions on what the Government can do, but this is far too much of a restriction—it is a complete straitjacket.

--- Later in debate ---

[Lord Adonis]

My Lords, may I elaborate on the point made by the noble Lord, Lord Pannick and invite the Minister to respond further? A key point in this debate is surely that powers conferred by Parliament should be exercised only as Parliament intended. A key point on paragraph 3 of Schedule 8, which the noble Lord referred us to, is that the power to make and approve subordinate legislation—which is conferred in primary legislation—was, in the case of retained direct EU legislation, originally conferred in the context of directives and legislation which derived from the European Union itself. So the context in which Parliament gave the power to make subordinate legislation was that it should achieve the purposes of the directive.

That being the case, allowing these powers to be used completely independently of those directives significantly enlarges the scope within which those powers can be exercised, which was not intended by Parliament when the powers to grant that subordinate legislation were first conferred. I am not sure that I am carrying the noble Lord, Lord Pannick, with me, but that seems to me to be a crucial aspect of Schedule 8, and it would be good to get the Government’s comments on that.

[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—

European Union (Withdrawal) Bill

Lord Pannick Excerpts

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

[Lord Adonis (Lab)]

My Lords, we are still formally on Clause 3, and I had the benefit over the short dinner break of speaking to the noble and learned Lord, Lord Keen, about the issue we were debating before the break in relation to Schedule 8. May I put a specific request to the Minister, to which I hope the noble and learned Lord will be able to respond? It will be crucial to our discussing this matter further on Report. Will he write to us to clarify a specific point that arises from what the noble Lord, Lord Pannick, said earlier? Does Schedule 8 give the Government the power to use subordinate legislation to modify primary legislation whose primary purpose is to implement EU directives? I wonder whether the Minister might write to Members of the Committee on that specific point.

[Lord Pannick (CB)]

I can tell the noble Lord and, indeed, the Minister that there will be a probing amendment on paragraphs 3 and 5 of Schedule 8. It has been tabled today and will be on the next Marshalled List.

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

The group that we are dealing with is not actually mine but, with the leave of the Committee, I will respond to the inquiry. In light of the reference to the probing amendment, the appropriate step would be for us to consider that amendment and determine what response we shall make to it. If I am in a position, in light of that amendment, to write to the noble Lord ahead of Report and elaborate on our position, rather than responding by way of a government amendment or something of that kind, I will do so.

--- Later in debate ---

Moved by

[Lord Pannick]

26: Clause 4, page 3, line 4, leave out paragraph (b)

[Lord Pannick]

Amendment 26 is another amendment arising from the report of the Constitution Committee and stands in my name and those of three other members of that committee: our chairman, the noble Baroness, Lady Taylor, and the noble Lords, Lord Norton of Louth and Lord Beith.

This amendment focuses on Clause 4(2)(b), which excludes from Clause 4, and therefore excludes from the scope of retained EU law, as defined in Clause 6(7), rights and obligations which arise under an EU directive but which,

“are not of a kind recognised by the European Court or any court or tribunal in the United Kingdom in a case decided before exit day (whether or not as an essential part of the decision in the case)”.

The problem with that was summarised in paragraph 38 of the Constitution Committee’s report. We said that this involves,

“ambiguities in the interpretation and effect of clause 4”,

which,

“will inevitably cause legal uncertainty about a fundamental provision of the Bill”.

--- Later in debate ---

[Baroness Goldie]

In response to the noble Lord, Lord Krebs, and the noble Baroness, Lady Ludford, we must go back to the fundamental principle of this Bill, which is that we have to have a cut-off point and beyond that point, law-making will revert to the United Kingdom. If there are corrections or incompletions or other matters that we are required to address, we can do that through domestic legislation. That is what any Government of any complexion would want to do. The matters referred to by the noble Lord, Lord Krebs, might take years to emerge. Therefore, it would be essential for Governments to pay attention to whatever was emerging, some of which might be de minimis. We do not know, but my argument is that this would confuse and cause difficulty about understanding what our law is and certainly where it is coming from.

I was going on to say in relation to the amendment of the noble Lord, Lord Krebs, that there is a lack of clarity regarding when exactly Ministers would have the duty to make such regulations under this amendment. Is it intended that all the instruments that currently give effect to EU directives should be reviewed so that such regulations could be repaired? Such a review would have considerable resource implications for both the Government and Parliament, and that should not be underestimated. Furthermore, it would be unnecessary: as I have already mentioned, while the UK has been a member of the EU, we have sought fully to meet our obligations and give effect to EU law in accordance with them. In the case of implementing directives, we have conscientiously discharged our obligations. To require potentially a proactive review exercise, as the noble Lord’s amendment could require, is, in my submission, pointless.

I have tried to address the concerns and issues raised; I believe the effect of these amendments would be profound, undermining the Government’s clear and coherent position on retained EU law. I hope I have explained in sufficient detail why the current design of Clause 4 is right and appropriate, and I would therefore ask both noble Lords not to press their amendments.

[Lord Pannick]

I thank all those who have spoken in this debate, and in particular the noble Lord, Lord Krebs, whose amendment I support. I said in opening this debate that I, and the Constitution Committee, found Clause 4(2)(b) very difficult to understand. I am reassured that even the noble Lord, Lord Carlile, with his experience dating back to 1361, with the Justices of the Peace Act, finds it puzzling.

The position is this: there is no dispute—it is well established in the case law of the Court of Justice—that an unimplemented directive does have direct effect and confers individual rights in national courts where it is clear and precise and unconditional. I understood the Minister to say that Clause 4(2)(b) is intended to exclude reliance on such a directive after exit day unless there has been a court case before exit day, either in Luxembourg or in this country on that specific directive. I find that a very odd approach—it certainly is not consistent with the language of Clause 4(2)(b) of a kind. It does not suggest that you are concerned with a court case on that specific directive.

--- Later in debate ---

Moved by

[Lord Pannick]

27: Clause 4, page 3, line 7, at end insert—
“( ) are the subject of an enactment.”

[Lord Pannick]

My Lords, this is another amendment that comes from the Constitution Committee. It suggests that we should exclude from the scope of Clause 4 any EU law rights derived from the 1972 Act which are already the subject of an enactment—in other words, where Parliament has already dealt with the subject. The Constitution Committee explained its concern at paragraph 35 of its report.

The concern is this. Clause 4 as drafted would include, within retained EU law, rights and obligations under EU law irrespective of whether they have already been implemented in domestic law by primary or secondary legislation. The problem to which this gives rise is that, as a result of Clause 4, there may be, as part of our law after exit day, two conflicting sets of legal rights on the same subject: the ones already implemented by Parliament and the greater rights which a litigant will say are derived from retained EU law. The question is: how is the court supposed to deal with that conflict? It has two retained EU law rights on the same subject. The Constitution Committee heard evidence from the noble and learned Lord, Lord Neuberger of Abbotsbury, the former President of the Supreme Court. As set out in the report, he told the committee that this problem needs to be addressed by the Bill.

Paragraph 36 of the report mentions that the committee heard evidence from the Department for Exiting the European Union that suggested that the problem that I have sought to explain is no different from the situation under the current law where there may be a statute which has sought to implement an EU law obligation that is found by a court judgment not fully to have implemented the EU law obligation, so the EU law obligation takes priority over the inadequate domestic implementation. The problem is that under the Bill, both the domestic enactment and the EU law obligation —see Clauses 2 and 4 respectively—are treated as retained EU law, so the supremacy principle under Clause 5, to which we will come, applies to both of them, and the question remains: which of them takes priority? I look forward to hearing the answer from the Minister to this difficulty. I beg to move.

[Lord Beecham]

My Lords, at this late hour, I am more than content to rely on the amendment moved by the noble Lord, Lord Pannick, and the questions he has raised.

--- Later in debate ---

[Baroness Goldie]

I thank the noble Lord very much indeed. I am sure my noble and learned friend Lord Keen does not even need the note. He will know that I have had a very difficult time.

[Lord Pannick]

I am very grateful to the noble Baroness. The problem is, as I sought to explain, that under existing law we know which takes priority: it is EU law. The problem under the Bill is that the EU obligation, which is retained EU law, and the existing domestic implementation, which is also retained EU law, because Clause 2 says so, are in conflict, and the Bill does not provide any order of priority between them. I had assumed that the noble and learned Lord, Lord Keen, had gone off because he wants to sit in the Library and think about the answer to this problem. I very much hope that before Report he will come up with the answer and that this can be resolved. I beg leave to withdraw the amendment.

Amendment 27 withdrawn.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

Moved by

[Lord Pannick]

31: Clause 5, page 3, line 11, leave out subsections (1) to (3)

[Lord Pannick (CB)]

My Lords, Amendments 31 and 33 arise again out of a report from your Lordships’ Constitution Committee. They are in the names of four members of that committee, the others being the noble Baroness, Lady Taylor of Bolton, and the noble Lords, Lord Norton of Louth and Lord Beith. In the same group I have tabled Amendment 31A.

These amendments address the inclusion in the Bill of the principle of the supremacy of EU law. Noble Lords will know that under the European Communities Act 1972, EU law takes priority over any inconsistent domestic legislation or rule of law. That is why the Merchant Shipping Act 1988 was disapplied in the Factortame case to the extent that it was inconsistent with the EU law rights of Spanish fishermen.

Since the purpose of the Bill is to read across the substance of EU law as at exit day and so secure continuity, the Constitution Committee recognises the need to maintain the priority of retained EU law over laws that were enacted or made prior to exit day. The scheme of the Act is that any future Act of Parliament will take priority over retained EU law. Our objection is to the Bill using the term, the “supremacy of EU law”. We point out in Chapter 5 of our report:

“The ‘supremacy principle’ is alien to the UK constitutional system”,


not only in its origin but also in its content. In our constitutional law, Parliament has supremacy and we think that it is very unsatisfactory that the Bill chooses to implement legal continuity by maintaining a legal concept, the supremacy of EU law, which leaving the EU is designed to abolish. If it is possible to avoid the use of the concept of supremacy for the application of our law after exit day, that would be preferable.

It is also difficult to see how Clause 5(3) advances the objective of legal certainty. To make the application of the concept of supremacy dependent on,

“the intention of the modification”,

seems to the Constitution Committee to invite uncertainty. I would be grateful if the Minister can explain how subsection (3) is intended to apply in practice. Amendment 31 would simply remove the provisions relating to supremacy and it needs to be read with Amendment 33, to which I will turn in a moment.

Another approach is offered by Amendment 32A. It would be much more consistent with British legal principles for Parliament simply to enact, as Amendment 32A suggests and as Professor Paul Craig of Oxford University has suggested—I gratefully adopt his scholarship—a provision that if, on or after exit day there is any inconsistency between retained EU law and an enactment made or a rule of law enforced before then, priority shall be given to the retained EU law.

Whether Clause 5 should use the concept of the supremacy of EU law is linked to another fundamental issue raised by this group of amendments. The Constitution Committee has advised your Lordships that one of the defects of the Bill is that it fails to accord a defined legal status to retained EU law. That is the focus of Amendment 33. The Bill as currently drafted does not say whether the retained EU law is to be treated as primary legislation, as secondary legislation or as something else; and if so, what? The Bill ignores the problem save in paragraph 19 of Schedule 8 which tells us:

“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”,


meaning that it cannot be disapplied by the courts but can be made the subject of a declaration of incompatibility. Our objection to paragraph 19 is that it begs a question: if retained direct EU legislation does have the status of primary legislation for the purpose of the Human Rights Act, does that mean that it does not have that status for any other legal purpose? The Constitution Committee advised in paragraph 51 of its report that the Bill will give rise to confusion and uncertainty about the legal status of retained EU law by failing to address this issue clearly and consistently.

The Bingham Centre for the Rule of Law has agreed with our concern that the Bill should confer a defined legal status on retained EU law. The centre has explained that individuals and businesses need to know about the status of one rule relative to another because the question of hierarchy is determinative of a number of legal questions. Which rule takes priority if there is a conflict between them? On what grounds may the content of a legal rule be challenged? What remedies are available if the legal challenge is successful, and what process must be followed if the rule is to be repealed or amended? Even worse, in the opinion of the Constitution Committee, the Solicitor-General told us in his helpful evidence that the Government would, if necessary, use the powers conferred in Clause 17 to make provision themselves to determine the legal status of particular retained EU laws for specified purposes. The report is very clear about that in paragraph 69:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


We added that for the Bill to say nothing about legal status but to allow Ministers to determine the status of particular retained EU law for particular purposes is,

“a recipe for confusion and legal uncertainty”.

Amendment 33 would implement the recommendation of the Constitution Committee by conferring on retained EU law the status of primary legislation enacted on exit day. The simplicity of that approach is that it would ensure, by a means entirely conventional on domestic legal principles, that retained EU law would take priority over previously enacted legislation, as the Government intend, but it would give way to legislation enacted after exit day—again as the Government intend. Another advantage of treating all retained EU law as primary legislation is that it would not be capable of amendment under existing delegated powers which are not Henry VIII powers. Ministers would be able to amend the retained EU law only by using existing Henry VIII powers where applicable or by using the powers conferred under this Bill. I should add that although the Bingham Centre for the Rule of Law does agree that the failure of this Bill to address the legal status of retained EU law is a serious defect, it does not agree with the remedy proposed by the Constitution Committee. The centre has expressed concerns that to treat all retained EU law as primary legislation risks devaluing its currency as well as running the risk that we will become inured to the use of Henry VIII powers to amend primary legislation.

The Bingham centre, like Professor Paul Craig, would prefer the Bill to accord a legal status to retained EU law that depends on the status which the norm had in EU law pre-exit day. There is an opinion from Mr Pushpinder Saini, the Queen’s Counsel for ClientEarth, which makes a similar proposal. I would be content with such a solution to this complex problem on which different views may reasonably be taken as to the solution, but I emphasise that the Constitution Committee and the Bingham centre agree that there is a serious deficiency in this Bill since it fails to accord a defined legal status to the retained EU law. I therefore look forward to hearing the Minister’s response to all three of the problems in the Bill raised by this group of amendments. First, the inclusion in Clause 5 of the concept of the “supremacy of EU law”; secondly, the failure of the Bill to confer a domestic legal status on retained EU law: is it primary legislation, is it secondary legislation; what is it?; and thirdly, the lack of clarity in Clause 5(3) with its reference to,

“the intention of the modification”.

I beg to move.

--- Later in debate ---

Amendment 31, proposed by the noble Lord, Lord Pannick, would remove references to the principle of supremacy from the Bill entirely. Amendment 32B would ensure that retained EU law continues to have precedence over pre-exit domestic law in the event of any inconsistency between the two. Amendment 33 would assign a single status for all purposes to all retained EU law. As I understand it, the noble Lord is therefore arguing that it is unnecessary to retain the principle of supremacy if we are to treat all retained EU law as though it is domestic primary legislation enacted on exit day and make clear that, in a conflict between retained EU law and pre-exit domestic law, retained EU law has priority.

[Lord Pannick]

It is more fundamental than that. The difficulty is, why use the concept of the supremacy of EU at all? It is surely inappropriate in a Bill of this nature.

[Lord Keen of Elie]

Not necessarily in the context of retained EU law, which comes over with that principle of supremacy standing behind it. I will come on to deal with that in more detail. I understand that, as the noble Lord indicated, his amendments draw on the recommendations made in the Constitution Committee report on the Bill—although I was interested to note that Amendment 33 appears to go further than the recommendations put forward by the committee, in that it extends the status of primary legislation to all retained EU law, rather than just to law being preserved by Clauses 3 and 4 of the Bill. So there is that difference between Amendment 33 and the recommendations of the Constitution Committee.

I understand entirely the concerns here and the attraction that these amendments have as a result. It is only right, however, that we should examine fully the consequences of dealing with status in a one-size-fits-all way.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Baroness for that observation. Obviously, that is something that we would take into account. It perhaps touches on a question I did not answer from the noble Lord, Lord Pannick, with regard to Clause 5(3), where he queried the reference to the “intention of the modification”. Of course, what that makes clear is that this will need to be considered on a case-by-case basis.

[Lord Pannick]

Of course, “case-by-case basis” suggests lots of work for lawyers and a lot of legal uncertainty. I am grateful to the Minister and all those who spoke in the debate. There was, I think, widespread agreement in the debate—apart from the Minister—and from expert commentators that a legal status does need to be conferred in the Bill on retained EU law. How one confers the legal status is much more difficult than what legal status one confers. I would say that there is more than one way to skin a cat—but that may upset those who spoke in the previous debate.

I am grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord Goldsmith, for supporting the approach recommended by your Lordships’ Constitution Committee. But I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is also great force in the suggestion made by Professor Paul Craig that the Bill should confer a status of either primary or secondary legislation, dependent on the category of EU law from which the retained EU law derives. I say to the noble Lord, Lord Adonis, who asked about this, that Professor Craig is not advocating a process of allocation on a case-by-case basis; he is advocating that legal status should depend on the article of the EU treaty from which the retained EU law derives—a much more objective approach.

[Lord Brown of Eaton-under-Heywood]

Did my noble friend hear Paul Craig say at a seminar, as I did, that it would take four competent EU lawyers four days in Brussels to classify, consistently with the classification both pre and post Lisbon, all this legislation? Four lawyers, four days—that is perhaps the answer to the question of the noble Lord, Lord Adonis.

[Lord Pannick]

Well, it depends. How long is a piece of string—how long does it take EU lawyers to allocate? But it is an objective approach. There may be difficulties, but they would be far fewer than the problems that would be posed by not addressing this problem at all in the Bill or by leaving it to Ministers to determine the matter. The other suggestion was that made by the noble Baroness, Lady Bowles. She may have the right answer. She spoke of various baskets—I think it was “baskets” rather than the word used by Sir John Major as Prime Minister in relation to opponents of the Maastricht treaty.

The core point is that it is unacceptable for the Bill to ignore the question of legal status. It is a problem that needs to be addressed if the Bill is to achieve its objective of securing legal certainty. Therefore, I hope that the Government will, as the Minister indicated, reflect on these issues before Report. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord True]

The noble Lord has spoken a great deal in the past few days; I would like to continue my remarks, if I may.

The important issue that is raised here is a perfectly good issue on which to have a debate in the Moses Room or on an Unstarred Question. These are matters of great importance. I strongly disagree with the noble Baroness who said that we had not made progress in this country: we have made a great deal of progress in this country. The performance of this country on gender equality, work/life balance and carers has been transformed in my lifetime. It needs to go further, but I cannot accept—

[Lord Pannick (CB)]

Does the noble Lord accept that a great deal of the progress that we have made—for example, on gender equality—has been because of the judgments of the Court of Justice in Luxembourg, which has imposed standards that our Parliament has not imposed?

[Lord True]

I do not necessarily accept that at all. I do not think that the progress of—

--- Later in debate ---

[Lord Wallace of Tankerness (LD)]

My Lords, I shall speak to the amendment in the name of the noble Lord, Lord Foulkes of Cumnock, also subscribed to by my noble friend Lady Bowles. The amendment is primarily a probing one, to seek clarification from the Government on what they are seeking to do here. Paragraph 2 of Schedule 1 states:

“No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day”.


So if one allows for the double negative, it rather suggests that, if it was a general principle of EU law that had been determined by the European Court in a case before exit day, it will continue to be part of domestic law. Having reached that point, the following paragraph says:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”,


and that no,

“court or tribunal or other public authority may, on or after exit day … disapply or quash”—

and so forth.

I am intrigued about why, having apparently established that there is a general principle of EU law that becomes part of our domestic law, when what is given away with one hand is taken away with another, one is not allowed a remedy based on that general principle of EU law. It would be helpful if the Government could clarify that.

The matter was raised in the report of your Lordships’ Constitution Committee, which at paragraph 117 of its report quotes Professor Alison Young, who wrote:

“Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ … This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. … But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche, the stronger remedy currently found under EU law for the protection of fundamental rights will disappear”.


Again, I seek clarification from the Government as to why they believe that these protections should disappear as currently found in EU law. Indeed, the committee in paragraph 120 concludes:

“The effects of excluding the Charter rights, retaining the ‘general principles’, but excluding rights of action based on them, are unclear … We recommend that the Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit”.


I sincerely hope that the noble and learned Lord will take the opportunity when replying to the debate to respond to that recommendation from the Constitution Committee and give us a clarification.

There was also one specific point, on which I would ask for a view from the Government Front Bench. The provision in paragraph 3 is:

“No court or tribunal … may, on or after exit day … disapply or quash any enactment … because it is incompatible with any of the general principles of EU law”.


I assume that that would mean to any enactment pre exit, which could of course include an Act of the Scottish Parliament. Therefore, would the provision in paragraph 3 prevent any challenge being made to an Act of the Scottish Parliament passed before the exit day on the grounds that it was outwith the legislative competence of the Scottish Parliament because it was incompatible with those general principles, but not on the grounds that it was incompatible with any other pre-exit European Union law?

In other words, if other EU law had been satisfied but there was still a problem or it was still not compatible with EU principles, would an action that had been raised before exit day on the grounds that it was incompetent have to fall because no court could make a determination of it because of this paragraph? Some clarification on this point would be welcome. It would appear that a principle is established, but not the remedy that might go with it.

[Lord Pannick]

My Lords, I have a similar question for the Minister. In paragraph 1(1) of Schedule 1, we are told:

“There is no right in domestic law on or after exit day to challenge any retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”.


I understand why that should be so, by reference to EU law principles, because at the moment you cannot challenge, in our courts, the validity of an EU instrument; you have to go to the Court of Justice. I am not sure whether the provision in paragraph 1(1) prevents, after exit day, a challenge to a provision of retained EU law brought by reference not to EU law but to common law principles. For example, are challenges on the grounds of legal certainty, the presumption against retrospectivity, or proportionality, which has already been mentioned, prevented by paragraph 1(1)?

[Lord Faulks (Con)]

Would the noble Lord agree that proportionality now seems to be part of UK law, notwithstanding what the noble Baroness, Lady Bowles, said?

[Lord Pannick]

I do not think that the courts have accepted that proportionality can be a challenge by way of judicial review where you are not raising an issue of EU law or convention law—but we have come a very long way towards recognising proportionality as a principle of the common law. That is one reason why I am asking this very important question. I simply do not know whether you can challenge retained EU law after exit day by reference to traditional common law principles.

One reason why this matters is that the Supreme Court, in the HS2 case, suggested that this might be possible under existing law. As was raised in the debate last Monday, we should also bear in mind that, under Clause 2, retained EU law includes statutory instruments that do not owe their legal basis to the European Communities Act. They include statutory instruments enacted through other mechanisms, albeit that they are linked to EU law. At present, one can challenge those instruments by reference to traditional common law principles. Therefore, if Clause 1(1) were intended to prevent such a challenge after exit day, it would be a significant change in the law.

[Lord Mackay of Clashfern (Con)]

Are these questions affected by the proposal to make this particular branch of law statutory? In that case, certain principles of our constitution might cause some difficulty.

[Lord Pannick]

The noble and learned Lord is absolutely right. If retained EU law were to be categorised as primary legislation, such challenges could not be brought. But the Minister resisted that suggestion in our earlier debate. I am concerned with the Bill as it is at the moment. What is the Government’s intention in this respect?

[Lord Goldsmith (Lab)]

My Lords, that short exchange has demonstrated how complicated this area is and how important the general principles of EU law are in it. It is, perhaps, late at night to be discussing this but it is extremely important because of both the principles and the way they operate. If one looks at it in this way, and takes the Government’s intention not to take away rights as a part of this process, one has to recognise that the architecture which provides rights at the moment is quite complicated. As a commentator has said, there is no single, simple answer to restoring the position in the light of what the Government propose to do.

Amendment 41, which stands in my name, follows the principle the noble Baroness, Lady Bowles, initiated by saying that the general principles of EU law should continue to be capable of giving rise to rights which can be enforced by our courts. The point has already been made that there is a difference between these general rights existing as a way of interpreting other rights—as an interpretive technique—and giving rise to freestanding rights themselves. Paragraph 3 of Schedule 1 prevents any action being founded in contravention of one of the general principles or rendering any Executive act unlawful or disapplying any legislation, including secondary legislation, on the grounds that it offends these general principles.

The general principles of EU law have been critical to a number of legal decisions relating to people’s rights. One of those often cited is the case of John Walker, who brought a case for equal protection in pension rights for his same-sex partner, a claim upheld by the Supreme Court which recognised that prohibition of discrimination on the grounds of sexual orientation was a key principle of EU law. As I apprehend it, without that the case would not have succeeded.

The principle of effectiveness of remedies has also been relied upon. When the Supreme Court struck down employment tribunal fees that disproportionately affected disadvantaged women and low-paid workers, the principle of effectiveness of remedies was relied upon. Cases concerning caps on compensation and equal pay cases have depended upon the general principle that we find in the EU principles. The amendment standing in my name and that of the noble Baroness, Lady Bowles, seeks to enable those general principles to continue to have that effect in our law. It is important that they do for a couple of other reasons. Take, for example, something that was raised in the other place. What if there is a principle of EU retained law which is deficient, defective, does not operate properly or is disproportionate? Without being able to rely upon the general principles of EU law, it may be that all the court could do if faced with that would be to say that either that principle or that particular Act or that particular piece of law, though deficient or defective, has to continue to operate because there is no principle by which it can be struck down, and that would be a loss.

The other reason goes back, I am afraid, to the debate that we had last week on the charter and the Government’s assertion that the charter is not necessary because all the rights are otherwise protected under our law. Of course, at the time the charter was drawn up we were still a member and, in many people’s minds at least, were expected to continue to remain a member of the European Union with all that that implied, including the continued application of general principles. But if one looks—

--- Later in debate ---

[Lord Keen of Elie]

With respect, it is a precautionary power and it is intended that, where the circumstances arise, the Minister will address himself to those circumstances and contemplate the making of appropriate regulations.

[Lord Pannick]

Perhaps I may suggest to the Minister a circumstance in which this might arise. The day after exit day the Court of Justice gives a judgment saying that a provision of EU law is invalid. Nevertheless, that provision will be part of retained EU law—it will be part of our law even though it has been abolished in the EU. That might be a circumstance in which the Minister wishes to act.

[Lord Keen of Elie]

I fully acknowledge that that is most certainly a circumstance that could arise. Of course, one might address that circumstance by Parliament legislating to reflect the outcome of that post-Brexit decision. However, I fully acknowledge that, depending on the way in which one constructs the departure on exit day, one might find that what one has retained as EU law ceases to be EU law almost immediately after one has left the EU. I believe that that has been acknowledged on a number of occasions. Indeed, it could lead to the development of two parallel jurisprudences—one for retained EU law and one for EU law. That is an inevitable outcome of our decision to leave the EU but to retain in our domestic law that which was EU law at the point of our departure. I fully acknowledge that, but it might also be a circumstance in which potentially one would seek to exercise the exceptional regulatory power that is referred to.

Reference was made to Amendments 41 and 42, tabled by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Foulkes, which seek to retain indefinitely in domestic law rights of challenge based on the general principles of EU law. If agreed to, these amendments would empower domestic courts to quash administrative actions or secondary legislation or, indeed, even go as far as disapplying an Act of Parliament on the ground that it breaches one or more of the retained general principles of EU law—that could take place long after we have left the EU. That is why we have to have a point in time at which we have certainty as to the scope for such challenges, and that is reflected in the schedule.

As the noble and learned Lord, Lord Goldsmith, acknowledged, Amendment 41 would go even further. It seeks to set out an ostensibly broader definition of which general principles are to be retained under the Bill. In that context, he alluded to Article 191 of the TFEU, which deals with environmental issues. I take issue with him as to whether the polluter pays principle and the precautionary principle are both now accepted as general principles of EU law. I would suggest that there is considerable doubt as to whether the former, in particular, constitutes what is recognised in EU law as a general principle, so I have some difficulty with that amendment.

I come now to Amendment 63, also tabled by the noble Baroness, Lady Bowles. It is, I apprehend, intended to retain this right of challenge but solely for the principle of proportionality, as she indicated, and specifically including where retained EU law is to be treated as primary legislation. It would also appear to permit the possibility of a challenge on the basis of invalidity of EU law, as well as judicial review of such legislation. It is our position that the general principles of EU law, such as proportionality, non-retroactivity and fundamental rights, will be kept in our domestic law, but in order to assist in interpreting retained EU law and not to give rise to additional stand-alone rights. Whereas some general principles are now set out expressly in EU treaties, the general principles were those that were first recognised by the European Court of Justice. They are essentially judge-made and determined as principles on the basis of case law. It is those principles that we are dealing with.

I come back for a moment to Amendment 41, which goes beyond just the issue of proportionality. It would undermine the approach that we are seeking to take if we were to pursue it. In particular the inclusion of Article 191 in the amendment risks going further than the existing principles that are, as I say, set out in EU law and consequently in UK law today.

--- Later in debate ---

[Lord Foster of Bath (LD)]

My Lords, I have added my name to Amendment 43, and I support Amendments 44 and 45. I begin by disagreeing slightly with the noble Lord, Lord Carlile. I suspect that I am in a minority: those of us who are not lawyers.

However, I am very conscious that during our deliberations so far we have heard many times that the Bill is intended to ensure that,

“as a general rule, the same rules and laws will apply after we leave the EU as they did before”.

About an hour ago we heard a very powerful reiteration of that from the noble Lord, Lord Duncan, who made it very clear that he believes what the Government seek to achieve. Yet that has to be put alongside the continuing concern in the other place and in many parts of your Lordships’ House that somehow or other Schedule 1 provides the Government with a get out of jail free card—an opportunity to have a series of measures which appear at least to curtail some of the legal rights and remedies we have enjoyed as a result of our membership of the European Union. A glaring example of that was well illustrated by the noble Lords, Lord Davies and Lord Carlile, and the noble Baroness, Lady Altmann, and is contained in paragraph 4 of Schedule 1 in relation to Francovich.

As the noble Lord, Lord Carlile, rightly pointed out, Francovich is not just some right whereby anybody who feels slightly aggrieved by their Government not properly implementing some piece of EU legislation can immediately start action. Three clear criteria have to be met and have already been laid out: that there are rights conferred on an individual, that the breach was sufficiently serious, and that there is a clear causal connection between the breach and the damage sustained by the individual.

It seems clear, at least to me as a non-lawyer, that if paragraph 4 of Schedule 1 remains in the Bill, no retrospective claims under Francovich will be permitted, and certainly not if the proceedings have not been started before exit. In those cases, individuals will lose their ability to claim damages against the state for failure to implement EU laws and directives issued pre-exit. This would mean that the victim of a government failure to correctly implement an EU law must have started action before exit day, but that will not always have been possible and would seem contrary to natural justice. Access to justice, including the ability to challenge the actions of the state before a court of law, is central to the rule of law. If paragraph 4 of Schedule 1 remains as it stands, it seems that access to justice for some people will be denied.

I was in your Lordships’ House some 10 days ago when we heard during exchanges on the Statement on air quality that the High Court had ruled that the Government’s air quality plan, designed to tackle nitrogen dioxide in the air, was unlawful. The Court ruling said:

“It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising”,


an air quality plan,

“which complies with the Directive and the domestic Regulations."

The judge, Mr Justice Garnham, added,

“In the meanwhile, UK citizens have been exposed to significant health risks”.


It may be that some individuals will wish to argue, under the rule of Francovich, that they have suffered damage and deserve compensation because of the Government’s failure to implement the 2008 directive. Without Amendment 43, or some similar measure, such individuals will be prevented from seeking justice unless they submit their claim and have their case under way before exit day.

In the other place, many other examples of potential loss of access to justice under Francovich were raised. Initially the Minister there, Dominic Raab, offered assurances that:

“Individuals will not lose their ability to vindicate their rights in court after exit”.—[Official Report, Commons, 14/11/17; col. 290.]


It may be—I have no way of knowing—that he believes that to be the case because of Section 16 of the Interpretation Act 1978, which provides that,

“where an Act repeals an enactment, the repeal does not, unless the contrary intention appears ... affect any right, privilege, obligation or liability … accrued or incurred under that enactment”.

So the right to claim under the rule of Francovich post-exit would seem to depend on whether the Bill before us provides an effective and clear contrary intention. Can the Minister tell us clearly whether the Government believe that paragraph 4 of Schedule 1 provides a clear contrary intention, within the meaning of Section 16 of the Interpretation Act 1978?

Certainly, there are some other lawyers who appear very uncertain about that point. For example, the very helpful briefing from James Segan of Blackstone Chambers leads me to conclude that seeking justice by arguing that there was no contrary intention or that it had been introduced ineffectively would lead litigants into a legal quagmire, so I was slightly heartened when in the other place a little later in the deliberations the Minister changed his tune when pressed by, among others, Conservative MPs Robert Neill, Dame Cheryl Gillan and Sir Oliver Letwin. He told them that he acknowledged the importance of legitimate expectations and agreed to see whether these concerns could be addressed, at least transitorily, by regulation rather than in the Bill. I hope that the Minister can update us on progress on that thinking. He has already said in relation to other aspects of Schedule 1 that the Government are willing to do that.

I would have thought that by far the better route to securing the continuation of the rights under Francovich would be to accept Amendment 43 or something like it, and ensure that the Bill makes it clear that when the Government say that the same rules and laws will apply after we leave the EU, they really mean it.

[Lord Pannick]

I have two questions for the Minister. First, will he accept that the right to damages under the Francovich principle is more generous to claimants than the common law principle of judicial review under which you very rarely have a right to claim damages as you need to prove misfeasance in public office or something similar? Does he accept that Francovich is more generous? Secondly, does he accept that it therefore follows that paragraph 4 of Schedule 1 to the Bill conflicts with the Government’s purpose in bringing forward this Bill, which is to read across all existing rights that are enjoyed under EU law? If he accepts that, what is the justification for making an exception for Francovich damages?

[Lord Lucas (Con)]

My Lords, it seems to me that if the Government break the law, they should be judged on the basis of the law at the time that they break it and that this is not a Bill in which the Government should seek to advantage themselves by averting that principle.

--- Later in debate ---

[Lord Keen of Elie]

With respect, it is not. I have to say to the noble Lord that Francovich damages are a rare remedy, as I have already indicated. Damages in the context of judicial review are not so uncommon as the noble Lord was suggesting. They are available as a remedy, albeit in limited circumstances.

[Lord Pannick]

My Lords—

[Lord Keen of Elie]

Perhaps I can continue just for a moment. I would begin by looking at the Bill against that background. Paragraph 4 of Schedule 1 is perfectly clear in saying the right to Francovich damages is removed, because of course it is related to a breach of European Union law, and it would not be appropriate to continue—in accordance with Amendment 43—after we have left the European Union. The Bill is quite clear in saying that there is,

“no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.

To that extent, it does deal with the issue raised in the context of Section 16 of the Interpretation Act 1978.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble and learned Lord. As I say, we are addressing that issue, which we recognise, and therefore in time for Report we will be determining what our position is. I cannot go further at this stage and I am not going to commit to an amendment, but I make it perfectly clear that we recognise that there is a potential lacuna arising from the fact that while, where a claim has been made before Brexit date it is continued, where the claim has accrued but no claim has actually been made it would be lost by this process. We recognise that there is room for criticism of the legislation on that basis; I am absolutely clear about that.

In these circumstances, I recognise the force of the amendment proposed by the noble and learned Lord, Lord Goldsmith, and that proposed by the noble Lord, Lord Carlile, in order to address that issue. I would take issue with the scope of the amendment proposed by the noble Lord, Lord Davies, which goes well beyond that and would maintain some sort of claim for Francovich damages in a context quite unrelated to our departure from the EU. I underline that this would not be appropriate.

I mentioned earlier the limited number of cases in which Francovich damages have arisen. That in itself suggests that it might be a proportionate response to the amendments made by the noble and learned Lord and the noble Lord, Lord Carlile, to allow for claims that have accrued because they are potentially very few indeed. I recognise that entirely. I am not committing to an amendment at this stage but I will make the position clear by the time we reach Report. In the circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Pannick]

Before the Minister sits down and we all go to bed, I am very puzzled by his suggestion that there is currently a right to damages in judicial review such that Francovich damages do not add anything. In what circumstances is the Minister suggesting there is a right to damages in judicial review, other than in the very rare cases where you can prove misfeasance in public office?

[Lord Keen of Elie]

That is one example of where a claim for damages would arise in the context of a judicial review. There are distinct circumstances in which Francovich damages will arise. The noble Lord will himself recognise that the circumstances in which you can actually establish a basis of claim for Francovich damages are even rarer than those instances in which you can establish one in domestic judicial review.

[Lord Pannick]

I do not accept that. It is quite clear, I suggest, that damages under Francovich are provided in circumstances where you would not otherwise get damages because you cannot prove misfeasance but you can prove that the breach is sufficiently serious and that the law was intended to confer a right to damages. That is why I suggest to the Minister that paragraph 4 is taking away something of value.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

Moved by

[Lord Pannick]

55: Clause 6, page 3, line 34, leave out subsection (2) and insert—
“(2) A court or tribunal may regard the decisions of the European Court made on or after exit day to be persuasive.”

[Lord Pannick (CB)]

My Lords, the two amendments in this group address the important question of the weight, if any, to be given to the judgments of the Court of Justice of the European Union which are delivered after exit day. Amendment 55 is in the names of the noble Lords, Lord Foulkes of Cumnock and Lord Adonis. Amendment 56 is in my name and those of the noble and learned Lords, Lord Goldsmith and Lord Wallace of Tankerness, and the noble Viscount, Lord Hailsham.

Amendment 56 would implement the recommendation of your Lordships’ Constitution Committee at paragraph 142 of our report on the Bill. After exit day, there is no dispute that our courts will make their own judgments on retained EU law. They will not be bound by judgments given by the court of justice after exit day. While judgments given before exit day will bind our courts up to the level of the Supreme Court, those given after exit day will not be binding. But our judges will wish to look at the judgments of the court of justice in Luxembourg delivered after exit day. That is not just because our judges are always interested, and rightly so, in seeing how courts in other jurisdictions address the same or similar issues. The connection here is much stronger. The retained EU law, which our courts will be interpreting, owes its origins to the institutions of the EU and there may be very good reasons for our courts looking carefully at how the court of justice has interpreted after exit day the same or a similar provision.

There are three problems with Clause 6(2) as currently drafted. First, it begins in a negative way by stating that a domestic court “need not have regard” to judgments delivered by the court of justice after exit day. That default position is unhelpful because it may be understood to suggest that our judges should not normally have any regard to post-exit day judgments of the court of justice.

Secondly, the end of Clause 6(2) allows the courts here to have regard to post-exit day judgments of the European court only if our courts consider it “appropriate to do so”. But judges do not look at foreign judgments because it is appropriate to do so; they look abroad for assistance because the foreign judgment is relevant to the issue that they are deciding. The terminology matters here. The use of “appropriate” wrongly suggests that our court will be making a policy choice to have regard to a post-exit day judgment from Luxembourg. Senior members of the judiciary have understandably expressed concern that if Clause 6(2) is left in its current form, the courts will inevitably be criticised for making a policy choice in this context.

I should make it clear that of course I do not speak for the judiciary, but I do speak to them. I can tell the Committee that many senior judges are very concerned about the content of Clause 6(2). Paragraphs 134 and 135 of the report of your Lordships’ Constitution Committee record the evidence that was given by the noble and learned Baroness, Lady Hale, the President of the Supreme Court, and her predecessor, the noble and learned Lord, Lord Neuberger of Abbotsbury, who I am pleased to see in his place today. The concern of the senior judiciary is not that judges should be shielded from criticism or that they are not tough enough to withstand it. The point is that confidence in the rule of law is undermined if judges are seen to be taking sensitive policy decisions that are for Parliament to make. Clause 6 therefore needs to make it much clearer that although our judges are certainly not going to be bound by Luxembourg judgments handed down after exit day, Parliament does intend our judges to have regard to judgments of that court given after exit day where they consider that those judgments are relevant to the issues before our courts.

The third defect of Clause 6(2) as currently drafted is that it suggests that the same principles apply to decisions of “another EU entity or the EU” itself. I am doubtful that there is any need to mention other EU entities or the EU itself, or certainly to compare them with the European court itself.

Amendment 56 seeks to address the issues in a manner which gives much clearer guidance to our courts. It would make it clear that our judges must have regard to a post-exit day judgment of the European court if the domestic court considers it relevant to do so. It would also add that in deciding the significance of any such post-exit day European court judgment, the domestic court should have regard to the terms of any agreement that is reached between the UK and the EU which it considers to be relevant. The terms of the withdrawal agreement, if and when approved by Parliament, will identify the relationship between the UK and the EU post exit day, and that will give considerable guidance to the courts.

I emphasise, however, that at all times under Amendment 56 and indeed under Amendment 55, it will be for the domestic court to decide on the significance, if any, of the Luxembourg judgment. There is no dispute over the fact that our judges will remain in charge in relation to post-exit day judgments. However, Amendment 56 would provide the guidance that they are seeking and which, I suggest, they are entitled to expect. I beg to move.

[Lord Foulkes of Cumnock]

My Lords, there is little to add to the excellent introduction made to these amendments by the noble Lord, Lord Pannick, except to say that decisions of the other courts which currently have persuasive authority include those of the Judicial Committee of the Privy Council, decisions of higher-level foreign courts, especially in the Commonwealth and other similar jurisdictions, and one that I have a particular interest in, being a member of the Parliamentary Assembly of the Council of Europe; namely, decisions of the European Court of Human Rights, which under the Human Rights Act 1998 must be taken into account by UK courts. It is right that the European Court of Justice should have a similar role and persuasive powers.

--- Later in debate ---

[Lord Adonis]

My Lords, my noble friend Lord Foulkes and I are basking in the judicial praise we have received this afternoon for Amendment 55. We put our pen to paper on it with no legal training whatever. Perhaps we should offer advice, which no doubt will be very expensively provided after this Bill becomes law, because we are able to cut through the issues with such great clarity. I note also that Amendment 55 is by far the shorter of those we are currently debating, so clearly we were able to summarise these matters succinctly.

I have listened to the debate and I am still none the wiser about the real difference, in plain English, between “relevant” and “appropriate”. I simply cannot understand it. I was astonished at the vehemence of the statement from the noble and learned Lord, Lord Neuberger, about the impact that this would have on the judiciary where a court is expected to decide that something is relevant rather than appropriate. It seems to me that in plain English these words have precisely the same meaning. They both require a court to exercise discretion and, to me, they look to require it to exercise precisely the same discretion. Unless the noble Lord, Lord Pannick, can lay out for us some compelling arguments, as he always does with such lucidity, it looks as if it does not matter one way or the other what we do here. It is a straightforward matter of whether or not courts are prepared to be robust in reaching their decisions.

[Lord Pannick]

There is no doubt that there has to be judicial discretion, the question is the extent to which guidance is given to the court. To suggest to the court that it should exercise its discretion by reference to whether something is appropriate suggests, does it not, that it is to make a policy decision? The question is whether something is relevant, meaning legally relevant by reference to the particular issue that arises before the court in its legal context.

[Lord Adonis]

The word “relevant” does not, in any normal meaning of the word, mean legally relevant, any more than the word “appropriate” means legally inappropriate.

--- Later in debate ---

[Lord Keen of Elie]

I am not going to elaborate at this stage because, as I say, the Government are going to go away and consider the proposals for an amendment to Clause 6(2).

[Lord Pannick]

I am very grateful to the Minister for that encouraging response, and I am grateful to the noble Lords and noble and learned Lords who have spoken in this debate.

On a matter of detail, the noble Lord, Lord Adonis, asked about new subsection (2B) in Amendment 56, giving guidance to the judges to look to the relevance of an EU agreement. The noble Lord asked how that would work. I shall give him an example. If the judge is seeking to interpret a provision of retained EU law, relating to, say, medicinal products; if the Court of Justice after exit day pronounces on a regulation which has become part of retained EU law, and if the withdrawal agreement has said that there will be close regulatory alignment between the EU and the United Kingdom in that particular area, then the judge would be encouraged to pay close regard to what the Court of Justice had said about the meaning of the regulation. Our court would still be in control but it would pay particular regard—that is the whole point of new subsection (2B).

There is widespread agreement around the House that the wording of Clause 6(2) is unsatisfactory and that Parliament needs to give as much guidance as possible to judges in this context to protect them from being seen to be required to take policy decisions, which would undermine confidence in the rule of law. The Government and Parliament would be very unwise to reject, in particular, the concerns expressed by the noble and learned Lord, Lord Neuberger of Abbotsbury. It is much more difficult to identify precisely what should be put in place of Clause 6(2). I am encouraged by what the Minister said—that the Government are listening and considering this matter. I am sure that all noble Lords who have spoken would be happy to contribute to the discussions that will take place before Report. I hope that, on Report, the Government will bring forward amendments to Clause 6(2).

[Lord Goldsmith]

Before the noble Lord withdraws his amendment, as I suspect he is going to do, can I ask him to clarify one point? He talked a moment ago about the need to protect the judges. Would he agree that it is a question not of protecting the judges from attack, but of protecting the independence of the judiciary and the rule of law?

[Lord Pannick]

I entirely agree with the noble and learned Lord. I think I said in opening this debate that it is not that the judges cannot withstand criticism of their judgments, it is rather that we are all concerned about confidence in the rule of law. As the noble and learned Lord said, if the judges are left to take policy decisions in a very sensitive context, where a decision will have to be made as to the weight—if any—to give to Court of Justice judgments handed down after Brexit, there is no doubt that they will be exposed. They will be the subject of criticism which will undermine the rule of law unless we do our job and give very clear guidance on what Parliament thinks should be the appropriate approach.

I beg leave to withdraw the amendment.

Amendment 55 withdrawn.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

[Lord Pannick (CB)]

My Lords, it is indeed striking that directives are not included in Schedule 5, part 1, paragraph 1(2). The reason may be that directives are given a very odd status under Clause 4(2)(b), which we debated on a previous day. Under Clause 4(2)(b), retained EU law does not include rights which arise under an EU directive when they are,

“not of a kind recognised by the European Court or any court or tribunal”,

in this country,

“in a case decided before exit day”.

We debated the complexities, the uncertainties and, as I see it, the unsatisfactory nature, of the clause. Is that the reason why directives are not included in Schedule 5, part 1? If not, what is the reason?

[Baroness Ludford (LD)]

My Lords, I support my noble friend’s valuable amendment. I wonder whether the Government are being as transparent as they ought to be. After all, there have sometimes been well-founded suspicions of gold-plating of directives and, in contrast, of not entirely full or accurate transposition of directives. I am sorry to repeat myself, but I gave the recent example of the European investigation order, which was not transposed in regulations last December with exactly the wording in the directive. The European Convention on Human Rights has been substituted for the charter, which is in my opinion a breach of the accurate transposition of the directive.

Not only during the transition but well into the future, businesses and all citizens will be obeying a lot of the acquis of EU law, if the Prime Minister’s emerging strategy of staying plugged into many EU policies and agencies one way or another comes to fruition. Therefore it is right for businesses and individuals to be able to see how EU law in directives, which unlike regulations, does not have direct effect, has been translated, transposed into UK law, so that they can track its accuracy. This is a long-running theme in the European Parliament, as my noble friend will know. Indeed, the Minister will know that there was an attempt to campaign in the European Parliament to have what was known in the jargon as “correlation tables”. It was possible to see exactly how EU law had been translated into national law in all EU states.

Funnily enough, the member states never wanted that to happen. They got away with a bit of smoke and mirrors of people not understanding where law had come from at the European level, or where it had not. Where something had been added at national level that was sitting in some dusty drawer in Whitehall and this convenient vehicle of an EU directive came along, they said, “Right, we’ll just slap into that things we’ve long thought about and no one will realise that it didn’t come from Brussels”. Well, people need to know whether it came from Brussels or not. The kind of transparency that my noble friend is seeking would be extremely useful.

--- Later in debate ---

[Lord Lisvane (CB)]

My Lords, this amendment is in my name and those of my noble friend Lord Pannick, my noble and learned friend Lord Judge and the noble Lord, Lord Tyler. It is grouped with Amendment 355ZZA in the name of the noble Baroness, Lady Bowles of Berkhamsted, which I venture to suggest has a great deal of merit.

Amendment 355 may appear to address a minor matter but it is an important matter of principle. The exception from the duty to publish provided by paragraph 2(1) of Schedule 5 depends on a Minister being satisfied that a relevant instrument, as defined in paragraph 1(2) of the schedule, has not become or will not become on exit day retained direct EU legislation. I entirely appreciate the argument that, in that case, there may be little point in publishing some or all of it. However, where the argument goes off course is that, while paragraph 2(2) allows a Minister to give a direction to the Queen’s printer not to publish a specified instrument or a category of instruments, paragraph 2(3) allows this to be done by mere ministerial direction.

The Delegated Powers Committee, of which the noble Lord, Lord Tyler, and I are both members, was critical of this. At paragraph 49 of its 12th report, the committee said:

“Amending the law by direction … is highly unusual. The delegated powers memorandum”—


that is, the Government’s delegated powers memorandum to the committee—

“justifies this on the ground that it is a ‘limited administrative power’. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation”.

It does not matter that this power is proposed to be used in relatively uncontroversial circumstances and that the identification of any instrument or category of instruments may be relatively straightforward. The important point is what the Delegated Powers Committee calls an “ominous precedent”. This may seem a little Cassandra-like, although I think that the Delegated Powers Committee is believed rather more often than was Cassandra with her repeated nul points, but, right on schedule, along comes the Taxation (Cross-border Trade) Bill, which makes much use of the unwelcome concept of making law by public notice—in effect, by proclamation, with no role at all for Parliament.

In the referendum campaign, much was made of parliamentary sovereignty, and it has been a recurrent theme of our debates in Committee. I suggest that we should be sharply aware of procedures or processes that tend to diminish or extinguish the role of Parliament in favour of that of the Executive. I beg to move.

[Lord Pannick]

My Lords, I have added my name to this amendment and I agree entirely with what my noble friend Lord Lisvane has said. I simply add that sub-paragraph (3) is also objectionable. It states:

“A Minister of the Crown must publish any direction under this paragraph”.


However, it does not even say how or where the Minister is to publish. It gives complete discretion to the Minister.

I also have a wider concern about paragraph 2: that is, the power for the Minister to create an exception to the duty of the Queen’s printer to publish retained direct EU legislation. The Minister recognised in the previous debate, and appropriately so, the importance of the law being publicly identifiable so that everyone knows what the corpus of retained EU law is. However, paragraph 2 contradicts that. To give a discretion to the Minister to exclude something from the material that is to be published by the Queen’s printer if the Minister takes the view that a relevant instrument will not become direct EU legislation leaves matters completely uncertain. I suggest that a much more sensible approach is that, if the Minister takes the view that a particular instrument is not becoming retained direct EU legislation, the Minister should have a duty to ensure that it is not included in the material that is to be published by the Queen’s printer.

What we want, and what the public are entitled to have, is a body of material that in the view of the Government constitutes the retained direct EU legislation that is to become part of our law. These matters should not be left to the discretion of Ministers.

--- Later in debate ---

[Baroness Goldie]

Well, I have listened with interest to these contributions. We will certainly reflect on what has been said. I understand the desire of the Chamber to get some whiff or wind of what the Minister might be contemplating and I can certainly undertake to look at what the noble Baroness, Lady Kramer, and my noble friend Lord Hailsham have said. I was going to go on, if I may be permitted to do so, to try to cover the point about secondary legislation, if I can pause for breath to do that.

[Lord Pannick]

The Minister is being very patient. I would like to add to what the noble Viscount has said. A real disadvantage of what the Government are proposing—that is, there is publication with no opportunity for the matter to be debated before it is decided—is that there is a means of challenge, and that is in court. It would be most unsatisfactory if the procedure that the Government adopt is that Ministers make a decision and publish a direction, there is no opportunity for debate in either House and then anyone who is aggrieved takes the matter to court. Surely it would be far better for this to be done by statutory instrument, and then any concerns could be properly debated.

[Baroness Goldie]

I hear the noble Lord, and I shall certainly reflect on that observation, but if I may be permitted to advance what the Government consider to be the case in relation to the proposition that this be dealt with by secondary legislation it might enable the Committee to understand why the Government have adopted the view that we have. The alternative option to require that any such direction is to be made of secondary legislation would arguably be counter- productive. The task of identifying instruments that will not become retained EU law will be a continuous one, and our awareness of such instruments will grow over time. I understand and respect the motives behind the amendment. I have to suggest that it would seem rather paradoxical to require the Government to legislate repeatedly in order to avoid the publication of irrelevant EU legislation, but maybe I am being perverse in looking at it that way. The legislation required to ensure that our law operates effectively after exit day will be significant, and I respectfully suggest that we should try not to add to that task in this case. As I have said, though, many useful points have been raised on this complex question, and I shall reflect on all the contributions made. However, on the basis of what I have been able to say, I hope the noble Lord will feel able to withdraw his amendment.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Committee: 11th sitting (Hansard - continued): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Lord Vinson (Con)]

My Lords, the ECJ works at a snail’s pace. There will be a massive amount of undigested legislation one way or the other at the end of the transition period—how does this affect the issue?

[Lord Pannick (CB)]

My Lords, I support this amendment. One of the primary purposes of the Bill is to promote legal certainty: I cannot understand how it can be anything other than destructive to legal certainty for Parliament to enact a Bill that includes Clause 6, which removes the jurisdiction of the Court of Justice of the European Union from exit day—defined as 29 March 2019—when the Government’s own intention, and that of the European Union, is that there should be a transitional period during which the Court of Justice will retain jurisdiction, and during which we will agree to that jurisdiction.

[Lord Hannay of Chiswick (CB)]

My Lords, I too support this amendment. I will be very brief. It seems that if the Government try to maintain the text as it is they are basically marching Parliament up to the top of the hill in order to march it down again—they are also marching Parliament to the top of the hill to defend a position on which they themselves ran up the white flag some weeks ago. Frankly, this is not a sensible way of proceeding. It will make a mockery of Parliament if it is asked to legislate something which it knows not even the British Government want to happen. Surely, the right answer is to remove Clause 6, as the amendment proposes.

If by any chance everything collapses or changes, or the Government somehow persuade the European Commission to draft the text in a different way, it will be perfectly possible for the Government to put it in the withdrawal and implementation Bill that will come forward after the conclusion of negotiations. Meanwhile, we should start with the standstill as it has been agreed and without this provision.

--- Later in debate ---

[Lord Keen of Elie]

Because that addresses a distinct issue, which is the exit date from the EU. It is quite distinct from the question whether we are able to finally conclude an implementation period, which it is our intention to do. Let us be clear about that. The EU has also indicated its intention to do it as well. But we are engaged in a bilateral negotiation.

[Lord Pannick]

It is plain and obvious that nothing is agreed, but can the noble and learned Lord be clear with the Committee about the Government’s position in relation to negotiating this transitional implementation period? Do they now accept that they are no longer seeking to impose any red line relating to the jurisdiction of the Court of Justice during that implementation period?

[Lord Keen of Elie]

I am not sure I agree with the term “red lines”; it is not one that I am inclined to use. I am never quite sure what they are. Our position is that during an implementation period, if and when finally agreed, we will accept that there is a role for the European Court of Justice. Indeed, it is outlined in the EU’s own proposals for the agreement at Articles 82 through to 85. As the noble and learned Lord indicated, that is not yet the subject of final confirmation between the two parties but it is what is anticipated.

On a related point, during that period, I agree with the noble and learned Lord, Lord Hope, that as we cease to be a member state we will cease to have the right to have a judge in the Court of Justice of the European Union. That must follow. However, we will have the right to make interventions in cases that pertain to the United Kingdom.

--- Later in debate ---

Moved by

[Lord Pannick]

358C: Schedule 8, page 55, line 33, leave out sub-paragraphs (1) and (2)

--- Later in debate ---

[Lord Pannick]

My Lords, this amendment is in my name and those of three other members of your Lordships’ Constitution Committee: the noble Lords, Lord Norton of Louth and Lord Beith, and the noble Baroness, Lady Taylor of Bolton.

Amendment 358C and Amendment 360A, with which it is grouped, address the powers tucked away in Schedule 8 to modify retained direct EU legislation by the use of delegated powers that relate to subordinate legislation. A power to modify is an important matter because “modify” includes a power to repeal—see Clause 14 (1).

This Committee has debated on previous days the surprising omission from the Bill of any provision that identifies the legal status of retained EU law. Is it primary legislation, secondary legislation or something else? The powers in Schedule 8, in paragraphs 3(1) and 5(1), which we are now addressing, have attracted the attention of your Lordships’ Constitution Committee because those provisions treat retained EU law as analogous to secondary legislation for the purposes of powers to modify. That is a surprising position for the Bill to adopt, certainly in relation to that part of retained EU law which confers important rights: for example, in the fields of employment, the environment and consumer protection. It means that, in addition to the other powers to modify retained EU law, which the Bill will confer and which we have debated in detail—Clauses 7, 8, 9 and 17—there is yet another set of powers recognised by Schedule 8 that will give Ministers the power to modify the retained EU law, on important subjects, which is brought into domestic law.

My concern is not reduced by paragraph 3(1) of Schedule 8 saying that these powers can be used only,

“so far as the context permits or requires”,

and paragraph 5(1) says that the powers may be used,

“unless the contrary intention appears”.

These statements are opaque in the extreme and certainly do not provide any degree of legal certainty.

I therefore look forward to hearing from the Minister why these powers are needed at all in addition to the other extensive powers which the Bill confers, and I look forward to hearing from him what these powers say, if anything, about the legal status of retained EU law. I beg to move.

[Lord Beith (LD)]

My Lords, I am glad to be associated with the noble Lord, Lord Pannick, in supporting this amendment to seek some clarity. I will simply add two further points, having said that this distinctly lacks clarity at the moment.

First, I draw attention to paragraph 3, which says:

“Any power to make, confirm or approve subordinate legislation which, immediately before exit day, is subject to an implied restriction that it is exercisable only compatibly with EU law is to be read on or after exit day without that restriction”.


A little gloss on that from the Minister would be helpful. The second thing that needs clarifying is the impact on the devolution aspects of the Bill. The Government’s Explanatory Notes say that,

“in relation to the devolved administrations these pre-existing powers”—

that is, the powers that can be used under the clause we are discussing—

“are subject to the devolution provisions described in paragraphs 36 to 41 of these notes, meaning powers in pre-exit legislation cannot be used to modify retained EU law in a way that would be incompatible with EU law as it existed on exit day until the relevant subject matters are released from the interim limit on their competence”.

I imagine that the noble and learned Lord, Lord Hope, pricked up his ears at that phrase, because it goes to the heart of the argument we have been having about the impact of the Bill on devolution and the idea that powers will be released to the devolved Administrations only once the UK Government are satisfied with the way they will deal with the framework provisions. The appearance of the phrase,

“until the relevant subject matters are released from the interim limit on their competence”,

in the Explanatory Notes is quite worrying. The provisions are of course there because some of the provisions here relate to existing devolved powers. The devolved Administrations must have the capacity to take this kind of action if the UK Government have the capacity to do so. However, it is subject to this rather extraordinary restriction: the Government hold on to the powers until they are satisfied that they can be released. For the benefit of clarity, I hope that the Minister can help us.

--- Later in debate ---

[Lord Keen of Elie]

I cannot give the noble and learned Lord an answer as to dates, but clearly we are concerned to ensure that any proposals we have to make are in place in time for consideration by the whole House before Report.

[Lord Pannick]

I am grateful to the noble and learned Lord, who I have always regarded as a true Renaissance Minister in all respects. I am very pleased to hear him confirm that the Government are seriously considering the issue of the legal status of retained EU law. The Committee of the House will look forward to seeing amendments from the Government in that respect. I am far less persuaded of the need to include in this Bill paragraphs 3(1) and 5(1) of Schedule 8, in addition to all the other extensive powers which the Government—and Ministers—will be giving themselves to amend retained EU law, under Clauses 7, 8, 9 and 17. The question is: why is it necessary also to include these powers in Schedule 8?

The concern, as the Minister will understand, is that future Ministers may decide that it is much more convenient to use the extensive, unrestricted powers in Schedule 8 than to comply with whatever restrictions are imposed by this House, by the other place—by Parliament—on the powers to modify under Clauses 7, 8, 9 and 17. So we might need to come back to this matter on Report.

I was also interested to hear the Minister say in his reply that the Bill is not the place for “radical policy change”. I will remind him of that when we debate the amendments—which no doubt will be put forward on Report—to take out the provisions in the Bill that remove from retained EU law the European Union charter of rights. I beg leave to withdraw the amendment.

Amendment 358C withdrawn.

--- Later in debate ---

[Lord Pannick]

My Lords, I have listened with admiration to the contributions of the noble Lord, Lord Adonis, throughout this Committee. They have been exemplary examples of scrutiny. But on this occasion, I am afraid, I am not persuaded. The reason I am not persuaded is that the 2011 Act imposed a referendum condition which applied in a series of circumstances, and they were all circumstances in which the powers of the EU and its institutions were extended. The Explanatory Notes to the Bill which became the 2011 Act made very clear that its purpose was to implement the commitment of the coalition Government —I quote from paragraph 11 of the Explanatory Notes —that,

“there is no further transfer of sovereignty or powers [from the UK to the EU] over the course of the next Parliament... Any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty”

The plain fact of the matter is that there is no transfer of further powers or sovereignty to the EU from the UK. On the contrary, this Bill is very simple. The agreements being negotiated are designed to achieve exactly the opposite, whether we like it or not—the return of powers to the United Kingdom from the EU. The 2011 Act simply has no application and it is entirely right and proper that if this Bill repeals, as it will, the 1972 Act, it should also repeal the 2011 Act.

[Lord Liddle (Lab)]

My Lords, I would like to intervene briefly to support my noble friend Lord Adonis, and I do this in defence of your Lordships’ House. When the 2011 Act was debated here, I was speaking on the Opposition Front Bench with my noble friend Lord Triesman. I think we gave it six days, possibly seven, in Committee, and three days on Report. We did our best to scrutinise this piece of legislation. It seems to me that the idea that it should be repealed in a schedule without any debate in the House of Commons is, as my noble friend Lord Adonis says, a bit of a constitutional offence.

The noble Lord, Lord Pannick, makes very good points, as he always does. Can I be allowed to make a political point in return? He says that there is no transfer of powers involved in what is going on now. Let me assure you that there is a big transfer of powers to Brussels. Brussels is going to be able to legislate, during the implementation period that we have now signed up for, without any British Minister taking part. We are asking for opt-ins to various pieces of Brussels legislation as part of the negotiations and British Ministers will have no say over those policies—no say on policies on goods trade or on financial services. We will be trying to maintain equivalence with a regime over which we have no say. As to the idea that this Bill is taking back control to Britain, it is in fact handing control in large parts to the EU, where British Ministers and the British Government will have no say at all. We on this side of the House should point out this position and explain that the way to deal with it is to stay in the EU, and that is what we should fight to do.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Report: 2nd sitting (Hansard): House of Lords
Monday 23rd April 2018 Lords Chamber

Moved by

[Lord Pannick]

15: Clause 5, page 3, line 20, leave out subsections (4) and (5) and insert—
“( ) The following provisions of the Charter of Fundamental Rights are not part of domestic law on or after exit day— (a) the Preamble, and(b) Chapter V.”

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, Amendment 15 is in my name and in those of the noble and learned Lord, Lord Goldsmith, the noble Baroness, Lady Ludford, and the noble Lord, Lord Deben. I will speak also to Amendments 18 and 19 in this group, which are in my name and that of the noble Lord, Lord Beith.

Amendment 15 seeks to include the European Charter of Fundamental Rights as part of retained EU law, with the exception of the preamble and Chapter V. The preamble contains no substantive provisions and Chapter V confers rights such as the rights to vote and to stand as a candidate in elections to the European Parliament, which plainly will have no application once the United Kingdom leaves the European Union.

Noble Lords will know that the charter sets out a number of important legal rights, from the rights of the child in Article 24 to the rights of the elderly in Article 25. It recognises the rights of persons with disabilities in Article 26, the right to healthcare in Article 35 and the protection of the environment in Article 37.

There are three reasons why I commend this amendment to the House. The first is that the Government’s purpose in bringing forward this Bill has been made very clear from the outset. The Prime Minister wrote in the foreword to the White Paper that the Bill seeks to repeal the European Communities Act 1972 on exit day and to convert into our law the body of EU law which applies at that date. Amendments to the body of retained EU law are for another day. As the Prime Minister said in the White Paper,

“the same rules and laws will apply on the day after exit as on the day before”.

The reason for that is very powerful. As the Prime Minister and her Ministers have repeatedly explained, it is to ensure certainty and continuity at exit date. That has remained the Government’s general position in relation to this Bill. On the 11th and final day in Committee on the Bill, the noble and learned Lord, Lord Keen, made the same point. He said:

“The Government have always said that this Bill is not the place for radical policy change”.—[Official Report, 28/3/18; col. 876.]


I agree.

Clause 5(4) conflicts with—indeed, it frustrates—that central purpose of the Bill. It would exclude an important part of existing law from the law which applies at exit date. In doing so, it would cause precisely that lack of certainty and continuity which the Bill is designed to avoid. Clause 5(5) would add to the uncertainty because it says that, although charter rights will not be part of retained EU law, fundamental rights and principles that exist in EU law irrespective of the charter will be retained. This is, quite simply, a recipe for confusion, especially when European Court of Justice judgments, which will become part of retained EU law on or after exit date, themselves rely on charter rights.

Perhaps I may give your Lordships one practical example of the problems that this will pose: the case brought by Philip Morris, the tobacco company. It challenged restrictions on tobacco labelling and packaging. In its judgment dated 4 May 2016, the Court of Justice in Luxembourg relied, in dismissing the claim by Philip Morris, on Article 35 of the charter, which confers a right to a high level of human health protection in EU law. That is an absolutely fundamental right.

--- Later in debate ---

[Lord Keen of Elie]

With great respect to the noble Lord, just because the charter is made part of retained EU law in terms of the Bill does not mean that Union law, which is the linchpin and anchor of the entirety of the charter, is then retained EU law. Union law remains Union law. Therefore the charter will continue to develop. Even though it is ring-fenced within retained law, the body of the charter will be subject to Union law. You cannot have it both ways.

The noble Lord also mentioned the loss of rights. As we indicated, we have done an analysis of rights, which has been published. We have indicated that if, once this Bill is passed, it is apparent that any substantive rights are lost, we will address that. With great respect, it appears to me that the noble Lord misses the fundamental point, which is that we are effectively going to be submitting to a body of foreign law after we exit the EU if we proceed in this way. I am afraid that is the case. We cannot say we are going to be directly implementing European Union law when we are no longer a member. We will not be. It amounts to that.

I accept that various views have been expressed by various parties about the scope of the rights that will be retained after we leave the EU without the charter, and there is a lively debate about that, but let us remind ourselves again that the charter has application only when we are directly applying EU law. My noble and learned friend Lord Mackay of Clashfern made the point. What happens to the right to dignity in circumstances where we are not directly applying EU law? Of course it still exists. We recognise that. We would have no difficulty in recognising that, and we do not require Article 1 of the charter for that purpose. In these circumstances, noble Lords have indicated, quite rightly, that to incorporate, or even to attempt to incorporate, the charter, particularly in the form of this amendment, is to do serious damage to our entire constitutional settlement, particularly post Brexit. I hear someone say, “Outrage”, and I agree with them.

I now come to Amendment 18, which was tabled by the noble Lord, Lord Beith. He suggested that his amendment would be a necessary consequence if Amendment 15 is carried, but I do not accept that it is a necessary consequence in those circumstances. His amendment, which seeks to remove the power in paragraph 2(2)(b) of Schedule 1 and the related provisions in sub-paragraph (3), is not appropriate. Schedule 1 generally ends the ability to bring challenges on EU law validity grounds to what will become retained EU law after we leave. After exit, individuals would continue to be able to challenge EU decisions before the CJEU and to have them annulled, in so far as they apply in the EU. The converted form of the decision would, however, remain in force within the United Kingdom. Domestic courts currently have no jurisdiction to annul an EU measure or declare it invalid, and we do not think it would be right to hand them a wide-ranging new jurisdiction which asks them effectively to assume the role of the CJEU. The noble Lord’s amendment does not alter that general exclusion.

Where we differ is that the Government recognise that, in some circumstances, individuals and businesses may be individually affected by an EU instrument which has been converted and should have a right to challenge it. For example, it would be strange if after exit a UK business were able to challenge and have struck down an EU decision which prevents it carrying out certain trading activities within the EU but would not have any equivalent right of redress in relation to the form of that decision which has been retained as part of UK law. It is for that reason that provision is made for this power. I note the noble Lord’s observation that it may be exceptional and may never be used. I accept that, but it is felt that it should be there as a safety measure. I urge the noble Lord not to insist on that amendment.

With regard to the position of the noble Lord, Lord Pannick, I ask him to think again about Amendment 15. I ask him to think very carefully about the form of it and what he is actually attempting to bring into domestic law, because it simply does not fit. It is in those circumstances that I invite him to withdraw his amendment.

[Lord Pannick]

My Lords, this has been a powerful and passionate debate and I thank all noble Lords who have spoken, whether they have supported Amendment 15 or opposed it. In particular I thank the Minister, even though he thinks I lack—what was it?—the delicacy of touch that is appropriate in these circumstances. I am going to go away and work on it.

I shall attempt—briefly, because we have had a long debate—to answer the main points that have been made against the amendment. The noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Mackay of Clashfern, expressed concern that the charter of rights will enable courts to strike down legislation. The noble Lord, Lord Howarth, expressed a similar concern: “What about parliamentary democracy?” was his theme. The Minister put his case very high: he said it was “shocking” and a constitutional outrage that we should be bound after exit by a body of foreign law. I have to ask him to read his own Bill because under the Bill, if a statute enacted before exit day is inconsistent with any part of retained EU law, the statute gives way. It is the supremacy of retained EU law—see Clause 5(2). So a concern about parliamentary sovereignty is no basis for excluding the EU Charter of Fundamental Rights from retained EU law. Legislation that is enacted after exit day will take priority over all retained EU law, which, if the amendment is passed, will include the charter. That is how the Bill asserts the sovereignty of Parliament, together with Clause 7, so this is a complete red herring. Amendment 15 has nothing whatever to do with the sovereignty of Parliament. The Bill deals with the sovereignty of Parliament in a perfectly acceptable way. It maintains the sovereignty of Parliament. We can do what we like after exit day, whether or not Amendment 15 is approved.

The noble Baroness, Lady Deech, criticised the drafting of the charter. However, in the context of a Bill that is designed to secure legal continuity on exit day, it cannot be right for noble Lords to point to individual provisions in the charter that they do not like or which are poorly drafted. The reason is that noble Lords could carry out the same exercise on every regulation or directive that is to be part of retained EU law and is being read across. Again, that is no basis for singling out the charter.

Then there were complaints from the noble Baroness, Lady Deech, and the noble Lord, Lord Faulks, expressing concerns about judgments by the European Court of Justice. Under Clause 6 of the Government’s own Bill, though, it is only judgments handed down before exit day that are binding, and only up to the level of the Supreme Court. Judgments that are given by the Court of Justice in Luxembourg after exit day are simply not binding on our judges; it is up to our judges whether they follow what the Luxembourg court may say in future. I emphasise a point I made in opening this debate: neither the noble Baroness, Lady Deech, the noble Lord, Lord Faulks, the Minister nor anyone else has given any examples of judgments given by the Court of Justice in Luxembourg on the charter to which they take exception.

Finally, the noble Lord, Lord Cavendish of Furness, told the House in a striking intervention—I hope I quote him correctly—that the good Samaritan did not need a bunch of lawyers to tell him what do. I say to him and to the House that, unfortunately, government and other public bodies often need to be told by judges what to do. I say to the noble Lord, Lord Shinkwin, that Parliament has often failed to protect fundamental rights. Without enforceable human rights, the victims of injustice and discrimination can and do go unremedied in the context of employment, equality or property rights. I say to the noble Lord, Lord Cavendish, and others on his Benches that if a Labour Government under Mr Corbyn were to be elected, they would be glad of the ability of courts to listen to human rights cases to secure remedies against arbitrary state action. They should think about that point, which I put forward as a Cross-Bencher.

As I said in opening this debate, to exclude the charter from retained EU law is unprincipled and unjustified. The House has heard no coherent defence of the Government’s position. I wish to test the opinion of the House.

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Moved by

[Lord Pannick]

19: Schedule 1, page 16, line 21, leave out paragraph 3

[Lord Pannick]

My Lords, we debated Amendment 19 earlier. I remind the House that it would remove the provision in Schedule 1, paragraph 3, which says that although the general principles of EU law are to be part of retained EU law they cannot provide a cause of action. I wish to test the opinion of the House.

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Moved by

[Lord Pannick]

21: Clause 6, page 3, line 34, leave out subsection (2) and insert—
“(2) A court or tribunal may have regard to anything done on or after exit day by the European Court, another EU entity or the EU where it considers it relevant to the proper interpretation of retained EU law.”

[Lord Pannick]

My Lords, Amendment 21 is in my name and those of the noble and learned Lords, Lord Goldsmith and Lord Wallace of Tankerness, and the noble Viscount, Lord Hailsham. It concerns the powers of courts and tribunals to have regard to judgments of the European Court of Justice in Luxembourg handed down on or after exit day.

When we debated this topic in Committee, there was widespread agreement that Clause 6(2) needed to be amended to give clear guidance to the judiciary. I and other noble Lords have had many meetings and discussions with the noble and learned Lord, Lord Keen, and with the Solicitor-General. I thank them on my behalf and that of the noble and learned Lord, Lord Judge, who cannot be present for this debate, for the care with which they have considered this important topic. I am very pleased that the Government have tabled Amendments 23, 24 and 25, which I think will remove the main concerns about Clause 6(2). Government Amendment 24 removes the opening words of the existing Clause 6(2), which suggested a default position of the court or tribunal not having regard to judgments or decisions given on or after exit day. Amendment 25 removes the requirement that courts or tribunals should ask themselves whether it is appropriate to have regard to judgments or decisions given on or after exit day. The amendment rightly states that the criterion is whether the court or tribunal considers the material relevant to the matter before the court. I am content with government Amendments 23, 24 and 25, subject to four points on which I would welcome assurances from the Minister.

First, Amendment 23 introduces new opening words for Clause 6(2) which make the subsection subject to Clause 6(1) and (3). Some concern has been expressed that these opening words somehow negate the substance of Clause 6(2). I do not believe that is so, but it is the Minister’s view that matters. Can he therefore please confirm that those opening words are intended simply to reinforce the duty of the court or tribunal on or after exit day to follow the detailed requirements in Clause 6(3) and to reinforce the duty under Clause 6(1) to interpret and apply retained EU law without being bound by anything decided in Brussels or Luxembourg on or after exit day, by contrast with what the courts have sometimes suggested is the obligation to follow the case law of the European Court of Human Rights under the Human Rights Act? But—this is the important point—the new opening words are not intended to affect the power of the court or tribunal, given by the substance of Clause 6(2), to have regard to judgments and other decisions in Luxembourg and Brussels given on or after exit day when domestic courts and tribunals interpret retained EU law.

Secondly, Clause 6(2) refers only to,

“anything done on or after exit day”.

Anything done before exit day will of course be part of retained EU law, subject to the limits stated in the Bill. However, it is possible to think of cases where a judgment of the European court given before exit day is relevant to the issue before the domestic court, even though that judgment is not part of retained EU law. Let us suppose, for example, that Parliament enacts new legislation on medicinal products to replace the existing law. If there is a dispute about the meaning of a section of that statute, the court may consider relevant a decision of the European court given last year on similar requirements.

It is also easy to envisage cases where a judgment of the European court handed down on or after exit day may be relevant to an issue in our courts which is not an issue about the interpretation of retained EU law. I therefore ask the Minister to confirm that Clause 6(2) is not intended to prevent a court or tribunal having regard to decisions of the European court handed down before or after exit day in cases not concerned with the interpretation of retained EU law, just as our courts may consider it relevant to have regard to a judgment of the Supreme Court of Canada or the High Court of Australia.

Thirdly, your Lordships’ Constitution Committee recommended in paragraph 142 of our report that Clause 6 should state that in deciding what weight to give to judgments or decisions of the European court or other European bodies given on or after exit day, our courts and tribunals should be able to take into account the terms of any agreement between the UK and the EU that the court or tribunal considers relevant. I moved an amendment to that effect in Committee. I see nothing in Clause 6 to prevent courts or tribunals taking such material into account if they consider it relevant to the issue before them. Does the Minister agree and will he confirm that this would be a matter for the judgment of the court or tribunal?

Fourthly and finally, the Minister knows that the attention given to the wording of Clause 6(2) has in part been because of concern to protect the judiciary against criticism that it is making a policy choice if and when it decides to have regard to judgments of the European court on or after exit day. The Supreme Court will also have to make judgments under Clause 6(3) as to whether to depart from judgments of the European court which are part of retained EU law. After the abuse directed at the Divisional Court following its judgment in the Gina Miller case in November 2016—I declare my interest in the case, not in the abuse—the noble and learned Lord, Lord Keen, was clear and forceful in his speedy defence of the independence of the judiciary, unlike the then Lord Chancellor. Can the Minister assure the House that when judges exercise their powers under Clause 6, the Lord Chancellor will see it as his role to defend the independence of the judiciary against any repetition of such abuse? I beg to move.

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I should inform the House that if either Amendment 21 or Amendment 22 is agreed to, I cannot call Amendments 23, 24 and 25 for reasons of pre-emption.

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[Lord Pannick]

I thank the Minister for giving the assurances that I sought on each of the four points that I raised. He has been exceptionally helpful in addressing these issues under Clause 6 which have caused great concern, and Clause 6 is much improved by the government amendments. I beg leave to withdraw Amendment 21.

Amendment 21 withdrawn.

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[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, the way in which retained EU law will be treated in our domestic statute book—what has been termed the “status” of EU law—is undeniably an important issue. It has been one of the key themes of our debates on the Bill, and the Government’s attempts to deal with it are woven throughout the Bill. The Government have always recognised the importance of getting this right—above all, in the context of the question of amendability.

These amendments, which deal with the amendability of retained EU law by secondary legislation, are to a large extent about ensuring its enhanced protection. As noble Lords will know, the House debated one way of giving enhanced protection to some parts of retained EU law last Wednesday, when it agreed to add a new clause to the Bill. Before setting out the government amendments, I will take a moment to explain to the House why the Government consider that the approach adopted last Wednesday is not the answer.

Amendment 11 in the name of the noble Baroness, Lady Hayter, carried last Wednesday, prevents crucial corrections being made in time for exit day. By failing to define key terms, and by introducing into the Bill arguably undefinable concepts such as “technical changes”, it introduces a high level of risk to attempting to take forward even the most uncontentious of corrections by secondary legislation. We have always been clear that most corrections, however innocuous and benign, require some limited policy choices.

Those corrections are how we ensure that current protections continue to operate. Our analysis is not complete but we believe that a very significant proportion of the planned secondary legislation programme, if made, would be at real risk of legal challenge, so the result of that amendment could be an enormous increase in the volume of needless primary legislation, which this House would then have to consider before exit day. In the end, we might be unable to achieve our core objective of ensuring a functioning statute book on exit day.

The volume of legislation required to keep pace with developments is already too great for it all to be done through primary legislation and this is likely to increase when we take on the legislative responsibilities of the EU. It is incumbent upon all of us to ensure that we put in place a balanced system. That system must enable the House to fully scrutinise the most significant changes to legislation and maintain the existing protections that we all value, while allowing for flexibility to keep pace with a fast-evolving world. It would be a dereliction of our duty to put in place a system which leaves Parliament unable to make important changes or updates which would enhance existing protections, such as the regulating of new hazardous chemicals or extending standards to new marine contaminants.

Parliament has debated at great length the speed at which our legislation should diverge from that of the EU but, whatever that pace, we must not leave Parliament hamstrung. The Government’s approach is to respect the balance between maintaining protections and the flexibility to reflect developments.

I know some noble Lords were in favour of deeming elements of retained EU law converted under Clauses 3 and 4 that are not already part of our domestic legislation to be one or another type of domestic legislation. Unfortunately, it is not that simple. For example, to deem an EU regulation primary legislation has all sorts of impacts, ranging from the problematic to the bizarre, such as requiring it to be printed on vellum and stored in the Queen Elizabeth Tower. Some noble Lords also wish to treat all retained EU law that is not already domestic legislation as if it were primary legislation. I recognise that noble Lords who have advocated this have the best of motivations, but it would leave the law so rigid and inflexible as to be virtually inoperable. The EU adopted just under 500 amending pieces of tertiary legislation in 2017. If this Parliament takes on the role of doing the same when those powers are returned to this Parliament by primary legislation only, we face a serious risk of these regimes ceasing to function.

I know the House loves examples, so let me provide one. Say that the Commission adopts delegated Acts under the biocidal products regulation to restrict active substance entry to the market. This is clearly an important public health matter which should continue to be adjusted rapidly and without primary legislation. Incidentally, that is also something that Amendment 11 would prevent. There are many similar examples in EU legislation and they vary as much as our domestic delegated powers. Therefore, instead of treating all direct EU legislation as domestic primary legislation for all purposes, the Bill sets out how retained EU law is to be treated in a number of specific situations, such as for the purpose of the Human Rights Act. Our amendments to the Bill for several of those purposes draw a similar distinction to that which the noble Baroness, Lady Bowles, has drawn in her Amendment 39. That is that EU measures adopted under co-decision or ordinary legislative procedure are to be treated as primary legislation.

We have proposed, broadly, that EU regulations and Clause 4 rights should be treated as primary legislation for the purpose of amendability and that tertiary legislation should be treated as subordinate legislation. Regulations and Clause 4 rights will therefore be amendable only by primary legislation and the very limited stock of powers to amend primary legislation on the statute book. Even then, those powers will operate only where the context will permit. This will ensure that the frameworks of retained EU legislation are maintained and can be adjusted only in the same way Acts of Parliament can, but that the technical matters underneath them can be adjusted by subordinate legislation to react quickly to the changing circumstances of the day, as now.

Our amendments provide that, in the future, Parliament will need to agree any new delegated powers to amend a specific regulation, or regulations. This House will be the gatekeeper that ensures there is no bonfire of EU regulations. This will include all the powers that we are transferring under the Bill from the Commission to UK Ministers and authorities. These are generally very tightly drafted and it will have to be clear to the House where and how they can amend regulations. If Ministers cannot justify this to noble Lords, they will not be granted these powers. However, I hope your Lordships will agree, for example, that the Secretary of State should be able to adopt measures such as the wine oenology implementing regulation to ensure that our wine producers are not left behind the rest of the world as technology advances. I know that would be a subject close to many noble Lords’ hearts.

Beyond amendability, there are a limited number of other places where matters turn on whether a law is found in primary or secondary legislation. This is the case in relation to the Human Rights Act, where the remedies available in response to challenges are different in different cases. We have therefore also reflected the distinction that EU regulations are to be treated as primary and EU tertiary legislation as subordinate for the purposes of the Human Rights Act. This will mean that, as with primary legislation, claimants will be able to receive a declaration of incompatibility in the event of a successful challenge to an EU regulation. I should point out that this is a very rare measure, which I am not aware that Parliament has ever ignored. For challenges against amendments to EU tertiary legislation, our courts may, if appropriate, strike down the legislation.

We have addressed in the Bill the areas of importance where matters turn on the distinction between primary and subordinate legislation. Our discussions outside this Chamber, including with academics and others, have not identified any other such matters. I am happy to return to the issue at Third Reading if other areas are raised in debate.

I have not yet addressed directives, which I know the noble Baroness, Lady Hayter, is very interested in. Directives, of course, do not form part of our domestic legislation. They have already, over the years of our EU membership, been implemented in primary legislation and under a range of delegated powers but principally in regulations made under Section 2(2) of the European Communities Act. The status of these regulations is clear. They are and should remain statutory instruments. I know that these regulations contain important protections which some noble Lords wish to ensure cannot be easily eroded, but it would be constitutionally deeply questionable and practically unnecessary to attempt simply to declare these instruments to be anything different.

All regulations made under Section 2(2) of the ECA will be preserved following the repeal of that Act by the Bill. There will then be almost no powers on the statute book; I cannot be absolutely definitive, but my officials have found only a handful which, within the scope of the policy area, might be able to amend regulations made under Section 2(2). Therefore, almost all of these regulations will need to be modified by primary legislation or new powers, which this House would of course have to approve. Nevertheless, the Government have heard the concerns raised in the House about the level of scrutiny of modification of these regulations. We are committed to ensuring that the protections provided in regulations made under the ECA are maintained throughout the process of exit, and that any future modifications as the Government continue to build on these protections are properly scrutinised.

The Bill already provides for statements in relation to the SIs under it, so government Amendment 112A therefore requires Ministers and other authorities making statutory instruments under powers outside this Bill after exit day to make statements explaining the “good reasons” for any changes to regulations made under Section 2(2) of the ECA and the effect of the amendment or revocation on retained EU law. There will be no escaping the scrutiny of this House.

I am sorry for the detailed explanation, but I hope I have provided an appropriate explanation of why these amendments both give clarity to the status of retained EU law and are the right way to protect it as we transfer it on to our statute book. I recognise that the status this legislation should hold is a particularly complex issue, on which legal and academic minds have differed. I pay tribute to all noble Lords who have applied themselves to the task. We have listened and I appreciate all the contributions that have been made. Our amendments reflect a sensible approach, one that recognises and reflects the existing hierarchy within EU laws, balances the need for effective parliamentary scrutiny while giving Parliament the flexibility it needs to amend an extremely large body of legislation, and allows this place to truly take back control of our laws. I beg to move.

[Lord Pannick]

My Lords, your Lordships’ Constitution Committee recommended at paragraph 51 of our report—HL 69—that the Bill should address the legal status of retained EU law; that is, whether it has the status of primary legislation, secondary legislation or something distinct. I am pleased that the Government have considered this matter—I am grateful to the Minister—and have produced the amendments in this group. My understanding is that they address the problem by ensuring that any domestic law which becomes retained EU law under Clause 2 continues to have the same legal status that it has at the moment: it is either primary legislation or secondary legislation.

In relation to retained EU law under Clauses 3 and 4, the amendments do not so much confer a legal status as address the problem by reference to the circumstances in which the retained EU law can be modified. The provisions are complex, and, I fear, necessarily so, given the inherent difficulty of the exercise.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Callanan]

You can take it from that, yes.

I cannot give any false hope that I will reflect further on this issue between now and Third Reading, so if the noble Lord wishes to test the opinion of the House he should do so now.

[Lord Pannick (CB)]

Will the Minister please give an answer to the question posed by the noble Baroness?

[Lord Callanan]

I am not in a position to share confidential government legal advice on this matter.

European Union (Withdrawal) Bill

Lord Pannick Excerpts

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

Moved by

[Lord Pannick]

7: Clause 8, page 7, line 4, at end insert—
“( ) Without prejudice to subsections (1) to (5) above, if and to the extent that the status of retained EU law is relevant for any other purpose—(a) retained direct principal EU legislation shall be treated as if it were primary legislation, and(b) retained direct minor EU legislation shall be treated as if it were subordinate legislation.”

[Lord Pannick (CB)]

My Lords, Amendment 7 is in my name and in the names of three other members of your Lordships’ Constitution Committee: our chairman, the noble Baroness, Lady Taylor of Bolton, and the noble Lords, Lord Norton of Louth and Lord Beith.

The amendment addresses a difficult issue. In its report HL69, dated 29 January of this year, the Constitution Committee drew attention in paragraph 51 to what we saw as a defect in the Bill: it does not specify the legal status that would be enjoyed in our law by retained EU law—that is, the body of EU material that the Bill incorporates into domestic law as at exit day. The question is: is it going to be primary legislation, secondary legislation or something else? And if something else, what?

The Bill deals with this question in part, for the purposes of the Human Rights Act, in what is now paragraph 28 of Schedule 8. But that exception simply begs the question as to what status retained EU law enjoys for other legal purposes. The recommendation made by the Constitution Committee that the issue needs to be addressed in the Bill was widely approved by expert legal opinion, in particular the Bingham Centre for the Rule of Law and Professor Paul Craig of Oxford University, although they disagreed with the suggestion by the committee that the status of all retained EU law should be that of primary legislation.

Ministers agreed to consider this issue and tabled an amendment on Report to introduce what is now Clause 8 of the Bill. Clause 8 is an improvement because it makes two points clear. It states that the part of retained EU law which derives from earlier statutes and earlier statutory instruments, enacted to implement EU law obligations, will retain the legal status it previously had—either primary legislation or secondary legislation. Clause 8 also addresses the circumstances in which different types of retained EU law can be amended.

However, what Clause 8 does not do is address the legal status of other retained EU law for purposes other than amendment. This may matter, as the Bingham Centre has suggested, for example, in deciding which rule takes priority if there is a conflict between different elements of retained EU law, or if the question arises of when courts may allow a challenge to retained EU law and what remedies they may give. Some distinguished legal scholars have expressed such concerns about Clause 8, particularly Professor Alison Young of Cambridge University.

The Minister made it clear on Report that because of the complexity of the issue, the Government were willing to consider the matter further at Third Reading. This amendment suggests addressing the issue of legal status by using the distinction that is in Clause 8 itself —between retained direct principal EU legislation and retained direct minor EU legislation.

I am grateful to the Minister for arranging a meeting for me yesterday with members of the Bill team and parliamentary draftsmen. They explained their concerns about the amendment. They have persuaded me that the contents of the Bill will minimise the occasions on which the legal status of retained EU law will matter. They have also pointed out that the amendment would need to specify more clearly what is meant by “primary legislation”, which covers not just Acts of Parliament but Acts of the three devolved legislatures. They also tell me that they are concerned about the generality of a deeming provision of this sort, which might cause difficulties in other contexts.

I have found these arguments compelling and I would be grateful, and I hope the House would be grateful, if the Minister would say a little more about these points when he replies to the debate. I am, however, concerned that it still appears to be the Government’s position that if any of these problems about legal status do arise in the future, they can be addressed by Ministers exercising delegated powers under the Bill. I remind the House that the Constitution Committee said in our report at paragraph 69:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.


I ask the Minister to tell the House whether or not the Government agree with that proposition.

I will add one further point—as a promise, not as a threat—which is that the Constitution Committee intends to keep a very close eye on this issue once the Bill becomes law. If it does become necessary to give particular retained EU laws a legal status, and if this is then done by Ministers exercising delegated powers, your Lordships’ Constitution Committee will certainly wish to return to the issue. I beg to move.

[Lord Beith (LD)]

My Lords, I will not add to the exposition of the amendment and the reasons for tabling it, which have been so clearly set out by the noble Lord, Lord Pannick. The committee felt that we ought to see whether we could get a more secure place for retained European law in the hierarchy of law as it would be viewed by the courts in this country. There will probably be difficulties in this area and we are probably persuaded that they cannot be resolved by the kind of declaratory amendment that we have tabled on this occasion.

There are further difficulties which the Minister might refer to, which have been pointed out by Professor Alison Young, who was referred to earlier. For example, constitutional statutes are not subject to the doctrine of implied repeal in the same way as other legislation. What will be the position if an item of retained European law is considered to be constitutional in character and appears to be in conflict with subsequent legislation passed post exit day, when the supremacy principle has fallen away and this has to be resolved?

In passing an earlier amendment which removed a discretionary power from Ministers to, in effect, decide whether matters could be put before the courts, we wanted to assert that, wherever possible, we should protect the courts and the legal system from having to be the subject of individual ad hoc ministerial decisions in particular cases. That was part of the motivation for what the committee sought to do in this case. But clearly it cannot be solved in the way that we first suggested.

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In the present circumstances, and with that explanation, I hope that the noble Lord will understand that his amendment and his intention to provide for an elegant and elegantly ordered statute book cannot, in our view, succeed in the face of the demands of some degree of legal certainty and good lawmaking. In those circumstances, I invite him to withdraw his amendment.

[Lord Pannick]

I thank the noble and learned Lord for explaining so simply just how complex this issue is. I am certainly not confident to answer his question about how what he kindly referred to as my elegant simplicity would improve the Bill on this occasion. I also thank him and other Ministers for the care and attention with which they have addressed the many points raised by your Lordships’ Constitution Committee on the Bill. I hope it is appropriate for me to say that the committee believes that its report has led to a number of amendments that have improved the Bill—happily, in most of those cases, without the need to divide the House. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.