Brexit

Debate between Lord Pannick and Lord Callanan

Saturday 19th October 2019 Lords Chamber

[Lord Callanan]

Okay. The number of Peers who have contributed to this debate, on a Saturday—

[Lord Pannick]

As to the letter, does the Minister mean that, by midnight, the Prime Minister will send the letter as listed in the Benn Act in the terms set out in the Schedule?

[Lord Callanan]

I mean what I said. I want to go no further than that.

Brexit: Discussions with the European Union

Debate between Lord Pannick and Lord Callanan

Thursday 20th June 2019 Lords Chamber

[Lord Callanan]

My noble friend is well aware that the deal was agreed jointly between the UK Government and the EU. Any solution will also need to be agreed jointly.

[Lord Pannick (CB)]

Can the Minister assure the House that Parliament will not be prorogued to prevent it expressing a view on the appropriate way forward before 31 October?

[Lord Callanan]

Parliament has expressed its view on these matters many times, both in the other place and in this House. I am sure that both Houses will continue to express their views in the future.

Brexit: Statutory Instruments

Debate between Lord Pannick and Lord Callanan

Thursday 10th January 2019 Lords Chamber

[Lord Callanan]

The no-deal scenario has not been ruled out by the other place. Parliament as a whole has legislated for leaving the European Union on 29 March this year. We hope to do so with a deal. If not, we will leave without one.

[Lord Pannick (CB)]

My Lords, do the Government have no concerns about the quality of the primary and secondary legislation that will need to be enacted by 29 March? One understands the political reasons for not seeking an extension of the Article 50 process, but the national interest surely requires it.

[Lord Callanan]

Of course we have concerns about quality. We are endeavouring to keep all the relevant committees informed of when SIs will be tabled. We wrote to them before Christmas to give details. We are publishing full explanatory statements with every SI as required under the legislation; we are endeavouring to work with Parliament as much as possible in this process.

Brexit: Negotiations

Debate between Lord Pannick and Lord Callanan

Tuesday 9th October 2018 Lords Chamber

[Lord Callanan]

The terms of the implementation period are already agreed and both sides agreed with the proposal to end the implementation period co-terminous with the end of the current multiannual financial framework. There is no possibility of extending that built into the agreement.

[Lord Pannick (CB)]

My Lords, can I ask the Minister whether the Government will be participating in the forthcoming Court of Justice of the European Union proceedings on whether there is power unilaterally to revoke the Article 50 notification? If the Government are participating, will they be submitting that there is such power or there is not?

[Lord Callanan]

This is the subject of legal proceedings, as the noble Lord is well aware. I am not going to answer his question because I am not sure we have made a decision about how we are going to proceed on that yet, but as soon as I know more I will come back to him on it.

European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Callanan

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

Debate between Lord Pannick and Lord Callanan

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

[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

Debate between Lord Pannick and Lord Callanan

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.

Brexit: Revocability

Debate between Lord Pannick and Lord Callanan

Wednesday 20th December 2017 Lords Chamber

[Lord Pannick (CB)]

My Lords, will the Minister accept that Erskine May continues, that,

“if a Minister deems it expedient that such opinions should be made known for the information of the House”,

that is perfectly permissible? Will he accept also that there have been many occasions over the years when the advice of the law officers has been published, and will he accept the conclusion of Professor John Edwards in his authoritative book, The Attorney General, Politics and the Public Interest, that the decision whether to publish particular advice of the law officer depends on,

“considerations of political advantage or embarrassment to the government”?

Does he agree?

[Lord Callanan]

The noble Lord is of course very experienced in legal matters and I thank him for his very interesting opinion.

Brexit: Release of Impact Assessments

Debate between Lord Pannick and Lord Callanan

Tuesday 28th November 2017 Lords Chamber

[Lord Callanan]

My noble friend makes a very informed point.

[Lord Pannick (CB)]

My Lords, in relation to a matter of this importance and the release of information, is it really right that the Government should be judge in their own court? Would the Government be prepared to let independent people, perhaps a group of privy counsellors, look at the information that has not been revealed and decide whether more of it should be revealed to the House of Commons and to this House?

[Lord Callanan]

My Lords, many Members of this House are independent and we fully value their judgment. They will be able to look at the documents. Many Members are on the Brexit Select Committee and I am sure they will let us know their point of view in due course.

Brexit: Data Transfer

Debate between Lord Pannick and Lord Callanan

Thursday 16th November 2017 Lords Chamber

[Lord Callanan]

As usual, the noble Lord is correct. It would be nice to think that Members opposite would be in favour of getting a good deal on behalf of the UK. I assume that they are all democrats and would therefore want to respect the result of the referendum.

[Lord Pannick (CB)]

The Minister said earlier that there will continue to be full co-operation between this country and the EU in relation to data. Can he please explain how that will occur if this country does not follow the judgments of the Court of Justice in Luxembourg on that issue, and if the laws of this country therefore diverge from those of the EU?

[Lord Callanan]

My Lords, we have said that, in exiting the European Union, we will bring to an end the direct jurisdiction of the Court of Justice of the European Union in the UK. This is without prejudice to the final details of the negotiations and the implementation period—but we are very clear on that point.