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.