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.

--- Later in debate ---

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.