European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Fowler

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

[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?