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.

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[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.

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Moved by

[Lord Pannick]

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

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[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.

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[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.

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[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.