European Union (Withdrawal) Bill

Debate between Lord Pannick and Lord Wallace of Tankerness

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I shall speak to the amendment in the name of the noble Lord, Lord Foulkes of Cumnock, also subscribed to by my noble friend Lady Bowles. The amendment is primarily a probing one, to seek clarification from the Government on what they are seeking to do here. Paragraph 2 of Schedule 1 states:

“No general principle of EU law is part of domestic law on or after exit day if it was not recognised as a general principle of EU law by the European Court in a case decided before exit day”.


So if one allows for the double negative, it rather suggests that, if it was a general principle of EU law that had been determined by the European Court in a case before exit day, it will continue to be part of domestic law. Having reached that point, the following paragraph says:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”,


and that no,

“court or tribunal or other public authority may, on or after exit day … disapply or quash”—

and so forth.

I am intrigued about why, having apparently established that there is a general principle of EU law that becomes part of our domestic law, when what is given away with one hand is taken away with another, one is not allowed a remedy based on that general principle of EU law. It would be helpful if the Government could clarify that.

The matter was raised in the report of your Lordships’ Constitution Committee, which at paragraph 117 of its report quotes Professor Alison Young, who wrote:

“Schedule 1 to the Bill makes it clear that ‘there is no right of action in domestic law on or after exit day based on failure to comply with any of the general principles of EU law’ … This prevents claims of the nature found in Benkharbouche, where the Charter was used independently from other provisions of EU law. … But claimants will still be able to rely on general principles of EU law, which protect fundamental rights. They will not be able to use these general principles on their own, but they will still be used to interpret EU-derived law, which then in turn could be used to disapply legislation. For the claimants in Benkharbouche, the stronger remedy currently found under EU law for the protection of fundamental rights will disappear”.


Again, I seek clarification from the Government as to why they believe that these protections should disappear as currently found in EU law. Indeed, the committee in paragraph 120 concludes:

“The effects of excluding the Charter rights, retaining the ‘general principles’, but excluding rights of action based on them, are unclear … We recommend that the Government provides greater clarity on how the Bill deals with the general principles and how they will operate post-Brexit”.


I sincerely hope that the noble and learned Lord will take the opportunity when replying to the debate to respond to that recommendation from the Constitution Committee and give us a clarification.

There was also one specific point, on which I would ask for a view from the Government Front Bench. The provision in paragraph 3 is:

“No court or tribunal … may, on or after exit day … disapply or quash any enactment … because it is incompatible with any of the general principles of EU law”.


I assume that that would mean to any enactment pre exit, which could of course include an Act of the Scottish Parliament. Therefore, would the provision in paragraph 3 prevent any challenge being made to an Act of the Scottish Parliament passed before the exit day on the grounds that it was outwith the legislative competence of the Scottish Parliament because it was incompatible with those general principles, but not on the grounds that it was incompatible with any other pre-exit European Union law?

In other words, if other EU law had been satisfied but there was still a problem or it was still not compatible with EU principles, would an action that had been raised before exit day on the grounds that it was incompetent have to fall because no court could make a determination of it because of this paragraph? Some clarification on this point would be welcome. It would appear that a principle is established, but not the remedy that might go with it.

[Lord Pannick]

My Lords, I have a similar question for the Minister. In paragraph 1(1) of Schedule 1, we are told:

“There is no right in domestic law on or after exit day to challenge any retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”.


I understand why that should be so, by reference to EU law principles, because at the moment you cannot challenge, in our courts, the validity of an EU instrument; you have to go to the Court of Justice. I am not sure whether the provision in paragraph 1(1) prevents, after exit day, a challenge to a provision of retained EU law brought by reference not to EU law but to common law principles. For example, are challenges on the grounds of legal certainty, the presumption against retrospectivity, or proportionality, which has already been mentioned, prevented by paragraph 1(1)?