Alternative Investment Fund Managers (Amendment etc.) (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Pannick

Tuesday 22nd January 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, I should register the same point, which is that we are expected to agree another statutory instrument without the impact assessment that applies to it, and that situation is wholly unsatisfactory.

[Lord Pannick (CB)]

My Lords, does the Minister agree that it is highly desirable that impact assessments are published prior to instruments of this nature being put before the House? Will he give an undertaking that in relation to further statutory instruments that process will be followed?

Transfrontier Shipment of Radioactive Waste and Spent Fuel (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Pannick

Tuesday 22nd January 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, as far as I can see from reading the material supporting the regulations, they do not involve any change in the operation of the law. As the Minister says, they have been approved by the devolved authorities, therefore they seem to me straightforwardly technical, but as there is no opportunity on the whole suite of regulations being moved today to raise issues about their management, I want to ask the Minister one question to which I hope he will respond when he replies.

In the original publication of the Order Paper, two further orders were due for debate today: the Conservation of Habitats and Species Order (Amendment) (EU Exit) and the Conservation (Natural Habitats etc.) (Northern Ireland) (EU Exit) Order. They were both on the Order Paper published on 16 January for today, but then they disappeared from the Order Paper published today. When I was preparing for this debate, there seemed to be some controversial issues surrounding those regulations, and they raise significant issues to do with natural habitats.

When the Minister replies—by then he will have been able to be advised by the Box—can he say why those two regulations were withdrawn from debate today, having been on the Order Paper on 16 January for today, what has happened to them and when they will appear before the House? Some of us are having great difficulty tracking the progress of these highly important regulations through the House because they seem to appear on and then disappear from the Order Paper almost at random.

[Lord Pannick (CB)]

My Lords, I have one question for the Minister. He told the House in the previous debate that these are no-deal regulations. Can he identify for the House which parts of these regulations will not be needed if the Prime Minister’s deal with the EU were to be approved by the House of Commons?

Nuclear Safeguards (EU Exit) Regulations 2018

Debate between Lord Adonis and Lord Pannick

Tuesday 22nd January 2019 Lords Chamber

[Lord Adonis (Lab)]

My Lords, we are grateful to the Minister for his introductory remarks. This regulation was debated in the Fifth Delegated Legislation Committee of the House of Commons last Tuesday, and I want to raise an issue that was raised in that debate. The good news, which gives significant resource to Parliament, is that we have the inspectors that we need to ensure the continuity of functions after 29 March, because there had been concerns when the legislation was going through the House that we might not. The Minister gave the figures in his remarks. However, my colleague, Alan Whitehead, the shadow Minister, raised an issue in the Commons that was not replied to by the relevant Minister, Richard Harrington. He said:

“The Minister said both yesterday and today that additional inspectors had indeed been appointed and that the ONR’s recruitment target for the first phase has been met … As I understand the position, we have inspectors in place to carry out inspection to an international standard, but not to the level previously set out in the regime overseen by Euratom. The explanatory memorandum for today’s SI states: ‘It is intended that these agreements … combined with these Regulations, will allow ONR to establish a new regime which will deliver international standards from day one of exit, building, over time, to be equivalent in effectiveness and coverage to that currently provided by Euratom, and which will exceed international standards’”.—[Official Report, Commons, 15/01/19; col. 6.]


This seems to be quite a significant issue and I would be grateful if the Minister could amplify on it in his remarks. I am not familiar with the industry, but at the moment the Government take pride—and therefore, presumably, so does the industry—in the fact that our inspection standards are above international standards.

The Minister in the House of Commons said that the continuity regime after 29 March will enable us to have inspections to the international standard but not to the existing Euratom standard. It is not clear to me, and it may not be to other noble Lords, what the difference is between an inspection to international standards and an inspection to Euratom standards. However, if it is such a good thing for our industry to have an inspection to Euratom standards, presumably that is because we believe that there is some specific public purpose to be gained in having an inspection to that higher level, and that therefore there is some loss to the industry and the wider public interest in having an inspection only to international standards.

This is not my area at all. I do not begin to understand the difference between inspection to international standards and to Euratom standards. The Government’s own impact assessment says that we wish to attain inspection to Euratom standards, but in the event of a no-deal Brexit, we will not be able to do so after 29 March. Since it has been raised in these debates, and since there clearly is a difference, I would be grateful if the Minister could tell the House what the difference is between international standards and Euratom standards, what we will be losing by having inspections only to international standards rather than to Euratom standards, and when we will achieve inspection to this gold standard—the Euratom standard—which apparently we are losing.

[Lord Pannick (CB)]

My Lords, further to the point made by the noble Lord, Lord Adonis, this is one of the reasons why the Secondary Legislation Scrutiny Committee, under the chairmanship of the noble Lord, Lord Cunningham of Felling, stated in paragraph 14 of its helpful report published on 13 December 2018 that these regulations raise issues of public policy which require them to be drawn specifically to the attention of the House.

At paragraph 11, the committee explains that it asked the department why the Euratom safeguard standards—which are higher than international standards—could not be met on day one after exit. The noble Lord’s department, BEIS, told the committee that:

“ONR aims to have the required capacity and capability to deliver a regime equivalent in effectiveness and coverage to that currently delivered by Euratom by December 2020”.


I imagine that this is a very real concern to the House. Does the Minister accept that on exit day it will not be possible to maintain the standards currently enjoyed under Euratom, and that it will take until December 2020 to do so? If that is the case, does he really think it is acceptable?

House of Lords: Sittings

Debate between Lord Adonis and Lord Pannick

Thursday 20th December 2018 Lords Chamber

[Lord Adonis]

My Lords, until Parliament has taken decisions on the Prime Minister’s deal, it is not going to be possible to consider other options. Those other options, which we will all have to consider, including my party, will include the possibility of further negotiations —though, given the statements by the European Council and other member states, I think that unlikely—or, crucially, the option of moving towards a referendum with the option within it of staying in the European Union. The reason it is so urgent that we do not go into recess for 19 days is precisely to meet the point of the noble Lord: until we have debated and reached the point of resolution on the Prime Minister’s treaty, it is not going to be possible to debate and decide on other options which could resolve the crisis we are now in.

[Lord Pannick (CB)]

The noble Lord says it is 19 days: what we are actually debating is whether the House should come back three working days earlier. Although I have great sympathy for the substance of the noble Lord’s observations, I cannot understand why it will make any difference whatever whether we come back on the Wednesday or the following Monday.

[Lord Adonis]

My Lords, I have huge respect for the noble Lord, but we are talking about parliamentary weeks: it is the difference between our coming back in the first week of January or the second. If we come back in the first week of January and hold our debate and our votes in that week, which is what I believe should happen, we will accelerate by two weeks the Government’s current proposal, which is that we do not debate our resolution on the Prime Minister’s treaty until the second week of January, and vote in the third week. That, to my mind, is deeply irresponsible and it is our duty to seek to accelerate it. Given that we are talking about 80 remaining parliamentary days after we come back, every week that we could gain as a result of accelerating proceedings would be deeply valuable.

Of course, the reason the Government do not want to do that, as the noble Lord will be aware, having participated so fully in our debates on the EU (Withdrawal) Act, is that the backstop date is 21 January, by which, under the Act, the Government must come back with a further statement of policy after they do or do not secure their treaty. It is surely in the interest of Parliament and the people that there is a significant gap between Parliament reaching its decision on the Prime Minister’s deal and that backstop of 21 January so that proper consideration can be given to the options before the country.

[Lord Pannick]

My Lords, I want to correct myself. I said three days. In fact, it is two days, because we do not sit on a Friday.

[Lord Adonis]

That does not affect the point that it is a parliamentary week. Of course, there is no reason whatever why we could not sit on a Friday. I am perfectly happy to sit on a Friday if the Government make time available and I am sure that other noble Lords would be too. Of course, we all put our duty to the country before our personal convenience. It would accelerate significantly our consideration of these important matters.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Pannick

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Adonis]

My Lords, my noble friend Lord Foulkes and I are basking in the judicial praise we have received this afternoon for Amendment 55. We put our pen to paper on it with no legal training whatever. Perhaps we should offer advice, which no doubt will be very expensively provided after this Bill becomes law, because we are able to cut through the issues with such great clarity. I note also that Amendment 55 is by far the shorter of those we are currently debating, so clearly we were able to summarise these matters succinctly.

I have listened to the debate and I am still none the wiser about the real difference, in plain English, between “relevant” and “appropriate”. I simply cannot understand it. I was astonished at the vehemence of the statement from the noble and learned Lord, Lord Neuberger, about the impact that this would have on the judiciary where a court is expected to decide that something is relevant rather than appropriate. It seems to me that in plain English these words have precisely the same meaning. They both require a court to exercise discretion and, to me, they look to require it to exercise precisely the same discretion. Unless the noble Lord, Lord Pannick, can lay out for us some compelling arguments, as he always does with such lucidity, it looks as if it does not matter one way or the other what we do here. It is a straightforward matter of whether or not courts are prepared to be robust in reaching their decisions.

[Lord Pannick]

There is no doubt that there has to be judicial discretion, the question is the extent to which guidance is given to the court. To suggest to the court that it should exercise its discretion by reference to whether something is appropriate suggests, does it not, that it is to make a policy decision? The question is whether something is relevant, meaning legally relevant by reference to the particular issue that arises before the court in its legal context.

[Lord Adonis]

The word “relevant” does not, in any normal meaning of the word, mean legally relevant, any more than the word “appropriate” means legally inappropriate.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Pannick

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

[Lord Adonis (Lab)]

My Lords, we are still formally on Clause 3, and I had the benefit over the short dinner break of speaking to the noble and learned Lord, Lord Keen, about the issue we were debating before the break in relation to Schedule 8. May I put a specific request to the Minister, to which I hope the noble and learned Lord will be able to respond? It will be crucial to our discussing this matter further on Report. Will he write to us to clarify a specific point that arises from what the noble Lord, Lord Pannick, said earlier? Does Schedule 8 give the Government the power to use subordinate legislation to modify primary legislation whose primary purpose is to implement EU directives? I wonder whether the Minister might write to Members of the Committee on that specific point.

[Lord Pannick (CB)]

I can tell the noble Lord and, indeed, the Minister that there will be a probing amendment on paragraphs 3 and 5 of Schedule 8. It has been tabled today and will be on the next Marshalled List.

European Union (Withdrawal) Bill

Debate between Lord Adonis and Lord Pannick

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

[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?

[Lord Pannick]

That is a very important question that we are coming to in later amendments. The Constitution Committee addressed that question. It has advised the House that one of the defects of the Bill, it respectfully suggests, is that it does not address that vital question and that legal uncertainty will be caused without it being addressed. The Constitution Committee suggested that retained EU law should be given the status of primary legislation, but there is a variety of views on this. The committee advised—I do not speak for the committee, but I am reporting what its report said—that this issue has to be addressed in the Bill. We are coming to it in later amendments.

--- Later in debate ---

[Lord Adonis]

My Lords, may I elaborate on the point made by the noble Lord, Lord Pannick and invite the Minister to respond further? A key point in this debate is surely that powers conferred by Parliament should be exercised only as Parliament intended. A key point on paragraph 3 of Schedule 8, which the noble Lord referred us to, is that the power to make and approve subordinate legislation—which is conferred in primary legislation—was, in the case of retained direct EU legislation, originally conferred in the context of directives and legislation which derived from the European Union itself. So the context in which Parliament gave the power to make subordinate legislation was that it should achieve the purposes of the directive.

That being the case, allowing these powers to be used completely independently of those directives significantly enlarges the scope within which those powers can be exercised, which was not intended by Parliament when the powers to grant that subordinate legislation were first conferred. I am not sure that I am carrying the noble Lord, Lord Pannick, with me, but that seems to me to be a crucial aspect of Schedule 8, and it would be good to get the Government’s comments on that.

[Lord Pannick]

The only reason why the noble Lord is not carrying me with him is that I do not understand the purpose of paragraphs 3 and 5 of Schedule 8. It seems to me extraordinarily broad, which is why I am seeking an explanation from the Minister as to why we need these powers, given that we also have Clause 7 in the Bill, which is time limited.