European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Monday 18th June 2018 Lords Chamber

Motion C1 not moved.

[Lord Goldsmith (Lab)]

My Lords, perhaps the most important words the Minister just said were to the effect that rights and protections will not be diluted or damaged as we leave the European Union. I noted those words, and we will all study Hansard carefully to get the extent of the assurances he has given. That was what lay at the heart of this debate: whether the consequence of leaving the EU would be a diminution of, or damage to, rights and protections that have grown up over the years and which for many people are of enormous importance. The areas identified in my noble friend Lady Hayter’s amendment indicate the areas of importance, such as workers’ rights and equality, as well as others to which the Minister referred.

I was glad to hear from the way the Minister described his amendment that there is no disagreement between us over the importance of protecting those rights; the disagreement is on the mechanism for doing so. To some extent, we are in uncharted territory. So long as these were rights derived from the European Union and so long as we remain in the European Union, they cannot be changed by a decision of a Minister or the Government alone.

The Minister has given assurances about the Government’s intentions and assurances that the mechanisms being put forward, which we welcome, will give effect to the need to maintain those protections. People will be watching—the Minister knows that—and they will be observing carefully how that promise is assured and safeguarded. Fundamentally, that is what these amendments from our Benches were designed to achieve: to make sure that these rights were neither diluted nor damaged. On that basis, we look forward to seeing how these assurances work in practice.

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[Lord Lisvane (CB)]

My Lords, I am very grateful to the noble and learned Lord for setting out the Government’s case with such precision and care. I am very grateful, too, to the number of noble Lords who voted in substantial majorities for the three amendments covered by the three Motions in this group.

The Minister and his colleagues have been rather critical of what I might call the family of amendments that seek to bolt on to the Bill issues of policy. They have said, “No, this Bill has a central theme”. Of course, these three amendments address that central theme. They are about the balance of power between Parliament and the Executive. I am quietly disappointed that, despite the degree to which the Government have moved in terms of explanatory statements and other matters, the Commons did not take this view. I did not see any new material or arguments deployed in the Commons. In particular, I did not see an acknowledgement that a definition of what might fall within the category of necessity—that is, “necessary”— might prevent Ministers being overly constrained by the use of that term. However, I think that, if one were to craft an interpretative provision of that sort, it would solicit a very similar answer from the House of Commons.

So I feel that the argument has been made, and perhaps that is where it should rest for the time being—but with a weather eye, which I know will be exercised by your Lordships, on how “appropriate” is interpreted by Ministers in the use of these provisions.

[Lord Goldsmith]

My Lords, in following what was said by the noble Lord, Lord Lisvane, I will make one observation. In this House, noble Lords have supported the noble Lord’s amendment, and rightly so, because the focus has been on whether there is an appropriate balance of power between the Executive and Parliament. In voting in the way that they did, noble Lords expressed their view, which has been noted quite plainly by the other place, that it is for Parliament to make such important decisions.

As the noble and learned Lord, Lord Keen of Elie, said, having got to the stage where the House of Commons has stated four times that it wants to stick with “appropriate”, which it thinks is appropriate, and does not think it necessary to go any further, we are not recommending that noble Lords should disagree the amendment. But the important point has been made, and two comments follow from that. First, we hope that Ministers will carefully realise the significance of the debate that has taken place; we imagine that they will. Secondly, we hope that people outside this House will realise that, in pushing and speaking to these amendments, this House has been doing its job of making sure that the Executive is held to account.

[Lord Wallace of Saltaire (LD)]

My Lords, there are two stages in the mass of subordinate legislation that we will have: what is required to be in place before March 2019 and what can be dealt with afterwards. Many of us in this House are now conscious that time is extremely short and the mass of legislation that needs to be got through before March 2019 is extremely large. If possible, we would like to hear from the Minister that, over the next six to nine months, Ministers will resist the temptation to cut corners on parliamentary approval of subordinate legislation and in the general adjustment of required legislation because there is such a shortage of time, and that he will make sure that Parliament and this House are allowed thorough scrutiny of all the measures that need to be put in place.

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[Lord Berkeley of Knighton (CB)]

My Lords, I think the humanitarian aspect of Brexit, especially in so far as it affects children, is something, as the noble Lord, Lord Dubs, mentioned, that the general public feel very strongly about. I am delighted to be able to congratulate the Government and the noble Lord, Lord Dubs, on reflecting that very important view.

[Lord Goldsmith]

My Lords, I add our thanks to the Minister for the tribute that he paid to my noble friend Lord Dubs. We entirely endorse that.

[Lord Duncan of Springbank]

My Lords, I think we are in full agreement in paying tribute not only to the noble Lord, Lord Dubs, for his diligence, his commitment and his compassion, but to all those across all parties who have recognised that, irrespective of Brexit, we must recognise our obligations and duties across Europe to the reunification of asylum-seeking children. It is also important to stress that across Europe, and indeed across the world, others are wrestling with this challenge and some are not doing very well. I believe we have established the right outcome here.

Brexit: Logistics Industry

Lord Goldsmith Excerpts

Tuesday 8th May 2018 Lords Chamber

[Lord Callanan]

I assure the noble Baroness that we have had many meetings with the Port of Dover. We continue to engage extensively, at both ministerial and official level. Of course, it is one of 275 ports and airports—albeit one of the largest—that we need to engage in discussions with to make sure that we put in place the logistical arrangements to make the border as frictionless as possible.

[Lord Goldsmith (Lab)]

My Lords, in an earlier answer the Minister identified two potential solutions to the customs issue. Can he please tell the House when he expects the Government to solve that problem and decide which of them they will choose, if either, and how?

[Lord Callanan]

The “how” is that we will look in detail, using our excellent teams of officials, at all the available options. We will announce in due course what the best solution is for the United Kingdom and then, of course, we will have to discuss those matters with our European partners.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Report: 6th sitting (Hansard): House of Lords
Tuesday 8th May 2018 Lords Chamber

[Lord Callanan]

My Lords, we have just debated an important issue, and later I shall turn to some other very substantive matters. Nevertheless, I ask for a moment of the House’s time while I make the case for the five government amendments in this group, especially for the noble Lord, Lord Adonis, who apparently does not believe that we are tabling any amendments to the Bill.

These are all consequential amendments on the status provisions that we debated on day two of Report, and which I am pleased to say that the House accepted without a Division. I know the House will look again at these complex provisions at Third Reading but, as I said on day two, I hope there will be no further amendments beyond anything that relates to additional matters where the distinction between primary and subordinate legislation is important, and therefore we should insert that distinction between retained principal direct EU legislation and retained minor direct EU legislation.

Amendments 93A, 93B and 93C clarify types of legislation that are included in the definition of “enactments” in the Bill. This definition includes a non-exhaustive list of enactments. The new status clause provides that enactments are to retain the same status as they had before exit day. The intention behind the provision was to address the concerns of some noble Lords about the effect that the Bill has on domestic legislation via Clause 2 and whether it changed the status of that legislation. As part of the Government’s commitment to ensuring clarity and certainty, we have tabled the amendments to make it clear that these additional types of legislation all continue to have exactly the same status that they had before our exit from the EU. The amendments clarify that Church Measures, Orders in Council made in exercise of Her Majesty’s prerogative and devolved enactments made in exercise of the prerogative are within the definition of “enactments” and therefore will retain the same status that they held prior to exit day. The Government have of course consulted with the Church of England, the Palace and devolved authorities before tabling the amendments. The amendments also make it clear that in the highly unlikely case that any of these instruments are related to the EU and contain deficiencies, the Government could correct those deficiencies if appropriate, although in these cases it is likely that others would use their own existing mechanisms to so do.

Amendments 112BA and 112BB simply insert the new definitions of “retained principal direct EU legislation” and “retained minor direct EU legislation” into the Interpretation Act so that the terms do not need to be defined in future legislation. I hope noble Lords will find nothing to object to in this group, and I beg to move.

[Lord Goldsmith (Lab)]

My Lords, I understand and am grateful for what the Minister has said about the purpose behind the amendments. He is quite right that, for example, the first three amendments identify as enactments things, including Church Measures, that would normally be regarded as such but were not included. My question for him is simply this: he said in moving the amendment that one of the advantages of the amendments would be to enable deficiencies, if there were connections with EU law, to be corrected through secondary legislation. Could he explain how these amendments will enable that to be done? I did not quite follow that.

[Lord Callanan]

As I said, we think it is highly unlikely that any of these instruments that are related to the EU will contain deficiencies. If appropriate, we could use secondary legislation powers to correct those deficiencies but, as I said, in virtually every case it is likely that others—the devolved Administrations, the Church and so on—would want to use their own existing measures to do so.

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Moved by

[Lord Goldsmith]

109: Clause 19, page 15, line 21, at end insert—
“( ) A Minister of the Crown may not appoint a day on which section 6 is to come in force unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union.”

[Lord Goldsmith]

My Lords, this amendment deals with a point that we raised and discussed in Committee. It may be that this group will not take too long, although that will depend upon what the Minister has to say. The important point about this is that the Bill as drafted would mean that at the moment Royal Assent was given, certain things would happen, including that the jurisdiction of the CJEU would come to an end. We raised the point that, given that it appeared likely that during an implementation period the Court of Justice of the European Union would continue, by agreement, to have certain jurisdiction, it would be important not to see the CJEU’s jurisdiction fall off a cliff edge, as it were. It may be that the noble and learned Lord the Minister will be able to reassure us that they will deal with this so as to ensure that if the CJEU continues to have jurisdiction in certain circumstances—which, as I say, I believe is a likely outcome of the continuation of the discussions—the Bill will not have taken away the ability to do that.

Amendment 109 would not allow Clause 6—which, among other things, brings the CJEU’s jurisdiction to an end—to come into effect until,

“the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.

The amendment focuses on transitional arrangements that are in fact agreed, not hypothetical arrangements. It would achieve no mischief because transitional arrangements would in fact be agreed and we would be saying simply that the jurisdiction of the CJEU should not come to an end until the end of that period.

The Minister may put forward some alternative way of achieving the same effect. I will listen very carefully, as will other noble Lords, to what he has to say about that. For the time being, I beg to move.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, in light of the observations made by the noble and learned Lord in moving this amendment, I will make one observation at this stage in response to his invitation to me.

Part Four of the withdrawal agreement so far agreed between the United Kingdom and the EU sets out:

“During the transition period, the Union law applicable pursuant to paragraph 1 shall produce in respect of and in the United Kingdom the same legal effects as those which it produces within the Union and its Member States and shall be interpreted and applied in accordance with the same methods and general principles as those applicable within the Union”.


That would mean that during the implementation period—assuming that that is actually agreed—the CJEU will continue to fulfil the role it currently does with regard to the UK’s legal structure. This effect will be provided for under the withdrawal agreement and implementation Bill. I do not know whether that assists the noble and learned Lord but that is the position as set out.

I add only that given the terms of the noble and learned Lord’s amendment—and I appreciate that it has been deliberately framed in this way:

“A Minister of the Crown may not appoint a day on which section 6 is to come in force unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union”,


if that amendment was passed, it would throw into doubt what would happen if there were no transitional arrangements. That is not an outcome that we seek but it is a distinct possibility and would mean either that Section 6 did not come into force at all or that potentially we would be thrown back into the billowing mists of uncertain inference. So I have that objection but I thought it might assist noble Lords if I made clear our position with regard to the implementation period. I hope that that responds to the noble and learned Lord’s observation.

[Lord Goldsmith]

My Lords, I cannot agree with the point raised by the Minister about the wording of the amendment. The amendment says that a day may not be appointed,

“unless this day follows the expiration of transitional arrangements agreed between the United Kingdom and the European Union”.

If in fact no arrangements have been agreed between the United Kingdom and the European Union, it would seem that effect could be given to the amendment.

Be that as it may, the important point is that, as I understand it, the Minister has said two things. He has said, first, that if an implementation agreement is agreed, it will include continuing jurisdiction of some sort for the Court of Justice of the European Union and, secondly, that the Government will make sure that that jurisdiction is provided under the terms of legislation to be brought forward; I think the implementation Bill is what the Minister has in mind. If that is right and the Government are telling us that they intend that legislation will incorporate a continuing jurisdiction if that is agreed, that would deal with the mischief that this amendment was designed to deal with.

If that is the position—it would be very helpful if the noble and learned Lord could confirm whether it is—I would then be able to beg leave to withdraw the amendment. I am watching his body language but I have been fooled by that before, so I would be grateful if he clarified whether what I have said is right.

[Lord Keen of Elie]

It is of course the position that there is no certainty that there will be an implementation agreement. In that event, I would seek to differ with the noble and learned Lord about the interpretation of his amendment but that is a matter of little moment, I agree. However, in the event of there being an implementation agreement that follows the terms of the withdrawal agreement in outline, which noble Lords have seen, then during the transition period the Union law applicable pursuant to paragraph 1 will produce the same effect in the United Kingdom as in the remainder of the EU. That would extend to the jurisdiction of the CJEU in respect of the matter of the interpretation and effect of such law. The noble and learned Lord is quite right that it would be the intention of Her Majesty’s Government, in those circumstances, to ensure that such a provision was expressed in the withdrawal agreement Bill.

[Lord Goldsmith]

My Lords, in those circumstances I beg leave to withdraw the amendment.

Amendment 109 withdrawn.

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[Lord Dykes (CB)]

I follow the remarks of the noble Lord, Lord Cashman, and intervene briefly to thank the noble Lord, Lord Low, for Amendment 83A and the noble and learned Lord, Lord Wallace, for Amendment 83E, and both of them together for what they have said. I agree entirely with their remarks and thank the noble Lord, Lord Low, for his characteristically forensic analytical ability to go through all the points, with which I strongly agree, and the noble and learned Lord, Lord Wallace of Tankerness, for his remarks. This is an important matter, and, as the only speaker who is not a signatory to the amendments, I think it would be right if the Government gave a comprehensive answer. People are worried about the future of equalities legislation in this country. On the reference of the noble Lord, Lord Cashman, to the possibilities, there may be a case for primary legislation in future—a new, comprehensive Act—but that subject is separate from this amendment and debate.

[Lord Goldsmith]

My Lords, the amendments have been moved so powerfully and comprehensively by the noble Lord, Lord Low of Dalston, supported by the noble and learned Lord, Lord Wallace of Tankerness, and my noble friends Lady Lister of Burtersett and Lord Cashman that I do not want to spend much of the House’s time commenting on them. I just want to make a few points. First, I congratulate the noble Lord, Lord Low of Dalston, on the new advisory role that he mentioned—or, perhaps even more, the Equality and Human Rights Commission for taking him in that advisory role. That will be very valuable for the commission.

Secondly, I very much support what the noble and learned Lord, Lord Wallace of Tankerness, said about the benefit of statements that Ministers have to make; that focuses their minds on what they are doing. I know from my own experience that that is a valuable example from the Human Rights Act, and I have no doubt that it will be very useful here.

Thirdly, on the point made by my noble friend Lord Cashman, we are talking not about preventing amendments being made to the level of protection, but preventing them being made through delegated legislation without considerably more care and scrutiny. That takes me to my final point. Amendment 11, which has already been referred to, moved by my noble friend Lady Hayter of Kentish Town, will be doing exactly that. It is a very important amendment that was accepted in your Lordships’ House. It will be one of the ways in which the very important continuing protection for equality may be maintained.

I support the amendment and look forward to hearing what the Minister says in opposition.

[Lord Callanan]

My Lords, I am grateful to the noble Lord, Lord Low, for his time and consideration on the important issue of how we maintain our equality protections as and after we leave the EU. I appreciate the discussions on this topic that he has had with the Bill officials and my ministerial colleagues. Before addressing the noble Lord’s Amendments 83A and 83E, the Government have reflected on our conversations with him, and today tabled amendments that will extend the statements regarding the Equality Act under Schedule 7 to SIs made under the consequential power in Clause 17(1).

This and other amendments we debated in Committee have sought to reflect in statute the political commitment that the Government have already made in this area—we will maintain the existing protections in and under the Equality Acts 2006 and 2010 after our exit from the EU. Following requests for assurances on this point in the debate in the other place, we tabled an amendment that will secure transparency in this area by requiring ministerial Statements about the amendment made to the Equality Acts by every piece of secondary legislation made under key delegated powers in this Bill.

The statements will, in effect, flag up any amendments made to the Equality Acts, and secondary legislation made under those Acts, while ensuring that Ministers confirm in developing their draft legislation that they have had due regard for the need to eliminate discrimination and other conduct prohibited under the 2010 Act.

As previously stated, the language of a political commitment does not translate to the statute book. So while our commitment to existing equality protections works perfectly well politically, and indeed in the wider world outside this place, these terms do not and could not have a sufficiently clear and precise meaning for the purposes of statute. These statements as tabled in the other place—

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Also in this group, however, as the noble Baroness reminded us, is Amendment 83G, which relates to the creation of criminal offences. My colleagues on the Constitution Committee are deeply hostile to the use of delegated legislation to create criminal offences. It is quite hard to envisage circumstances in which that can be justified, and the government amendment is an attempt to address the concerns of the House on this point by providing that that too will be the subject of specific explanation. If I were to try to imagine a circumstance, it might be one in which what was a criminal offence in EU law would not be a criminal offence unless we created a new law to do it. I would still rather see that done by primary legislation but I note that the Government are trying to ensure that there are at least explanations for it. If the Government are leaving that open and are still discussing what form of words will best meet that point, presumably that matter must be referred to at Third Reading. Certainly I do not intend, and do not think that my colleagues on the Constitution Committee intend, to press Amendment 83D.

[Lord Goldsmith]

My Lords, it is a pleasure to follow the noble Lord, Lord Beith. The Government have moved on this, and that is to be recognised and appreciated, but they could have moved further, as the noble Lord, Lord Beith, has made very clear. It is slightly paradoxical that, as he says, the Government’s concern not to appear to be making policy changes prevents them adopting an amendment which makes it clear that what the instrument is to do is not to make a policy change. Be that as it may, although I find it hard to believe that the Government and their advisers could not have come up with a form of words that indicated the technical nature of the change being made while not falling into the trap of appearing to make policy changes, we would not prevent that amendment being agreed.

I want to underline three points which I invite the Minister to comment on. First, the way that these Ministers’ statements are described makes it clear that it is the statement of the Minister that is required. She spoke on at least one occasion about the Government’s view that something should be done, and no doubt the Minister would not do something if it were not the Government’s view. However, it is an important and critical part of the statement obligations that the Minister in question should apply his or her mind to the issue. That is the point that the noble and learned Lord, Lord Wallace of Tankerness, rightly made in the earlier debate. Therefore, I would be grateful for her confirmation that it will be understood that, where Ministers are to make such a statement, they have a personal responsibility to be satisfied. That is the whole point of including those words—so that the House or another place has the confidence and assurance that the Minister has focused on the issue and determined that the conditions are satisfied.

The second point I want to underline is that acceptance of these amendments does not in any way undermine the importance of the amendments that the House has already agreed in relation to the “appropriate” and “necessary” distinction. That requirement will remain, and the fact that the Minister’s statement may be expressed in different terms does not undermine it in any way. It will still be necessary—to use that word—for the necessity condition to be satisfied. I would be grateful for the noble Baroness’s confirmation of that.

My third point is that I, like the noble Lord, Lord Beith, am intrigued by the reference to the Government still considering the wording to be used for the creation of criminal offences. We look forward to seeing what they say. It sounds like it will be coming back at Third Reading, and on that I would welcome the Minister’s confirmation. In any event, in doing that, and as the Government consider their words, the House might expect the Minister’s statement to explain not just that there are good reasons for creating the offence but why there are good reasons for creating it in this way. Of course, as the noble Lord, Lord Beith, has said, there is no reason not to create criminal offences by primary legislation; our concern has been creating them by delegated legislation. The House will need to be satisfied that that is an appropriate thing to do in a given case. I look forward to hearing the response to those points.

[Baroness Goldie]

I now look forward to giving that response. I thank the noble and learned Lord for his comments. On his first point, which is fairly legitimate, he will be acutely aware that Ministers have not just a personal but a political responsibility. They are, in the office of being a Minister, responsible for having made the statement. That, I think, imputes to the Minister both a political and a personal responsibility. Governments of all colours act in good faith and the Ministers involved act in good faith. I think this House will be satisfied that Ministers of whatever political hue acting under these powers will genuinely have a personal focus on what is being discussed—I think “focus” was the word used by the noble and learned Lord.

The statement must both make the original statement and give an explanation of the delay in having brought the statement forward. I have tried to make that clear in my remarks: this is not an alternative responsibility but a complementary responsibility; the two things will apply. A Minister cannot shoal off one of them and offer the other. Both responsibilities will apply.

The final point was that, when creating an offence, the noble and learned Lord thought it was appropriate to justify not just why the offence was being created but why it was being created in this way. Again, that is ex facie. Part of the impact of the responsibilities of the Minister under the Bill, if so amended, is that they can expect to be questioned closely. Indeed, given the now very robust scrutiny procedures that are in place, Ministers will expect to be questioned closely not only as to why they are creating the offence, but why they are doing so in this way. That is implicit in the structure within which Ministers are now being asked to operate. I hope that to some extent answers the noble and learned Lord’s points.

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[Lord Goldsmith]

My Lords, the Government have come forward with, in effect, some concessions in this area so as to give added safeguards to Members of this House that these powers will be used responsibly.

I know that the Minister recognises how concerned Members of the House are about the way that legislative power may be exercised other than through the full parliamentary process, or sub-delegated to others. That is why it is very important that the statements that it is proposed will have to be made are carefully considered. I will not repeat what I said in previous debates about the importance of ministerial responsibility for them, but the Minister has said that the House and another place will want to scrutinise very carefully both the statements that are made and the reports that are proposed to see how this is going. I therefore appreciate the changes being made by the Government and will be happy to see them go through.

Amendment 83L agreed.

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[Lord Keen of Elie]

That is probably attributable to a note that I have here saying, “Don’t move Amendment 116”.

[Lord Goldsmith]

I will try to help the noble and learned Lord. It might be because it is pre-empted by Amendment 19 on general principles of EU law, which the House passed at an earlier stage.

[Lord Keen of Elie]

It was moved by the noble Lord, Lord Pannick. Because it was passed, Amendment 116 does not arise.

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[Lord Adonis]

My Lords, it seems to fall to me to move the last amendment of Report, as in Committee. However, I am not going to detain the House for long because, having re-read the Committee proceedings earlier, I found myself fully persuaded by the compelling and eloquent arguments made by the noble Lord, Lord Callanan. As his arguments rolled off the page about the intent of the European Union Act 2011 and how it was not intended to address a situation other than a significant accretion of powers to the European Union, I thought it would not be sensible to press this. I am entirely persuaded by the fact that if we are to have a referendum on the treaty that the Prime Minister is negotiating with the European Union, as I believe we will ultimately have, it needs to be on an explicit vote by Parliament and cannot take place as a consequence of the 2011 Act. So, at 10.38 pm, I can bring Report proceedings to a conclusion.

[Lord Goldsmith]

My noble friend was very anxious to bring proceedings to a close at 10.38 pm. Would he be clear as to whether litigation taking place relating to the argument about the 2011 Act has completed? He seems very knowledgeable about that.

[Lord Adonis]

I believe it is still ongoing. Presumably it is perfectly reasonable for it to be ongoing until the 2011 Act is repealed, which it has not been yet. That is a matter for the litigants, not for me.

[Lord Goldsmith]

I am grateful for that. Does it not therefore change my noble friend’s view as to how he wants to deal with this amendment?

[Lord Adonis]

No.

[Lord Goldsmith]

My Lords, there is nothing more I want to say about that, but it would be inappropriate to finish immediately without from these Benches thanking everybody for the part that they have played in this Report stage as we move towards the conclusion of this Bill at Third Reading—and towards 10.40, which I notice it now is.

[Lord Callanan]

The House will be pleased to know that I shall not repeat all the arguments against the amendment, but, following on from the questions that the noble Lord asked me in Committee, it would perhaps be helpful for him to know that the Government intend to commence this provision of the Bill shortly after Royal Assent. That was a question that the noble Lord asked me in Committee and I wanted to be up front with the House about it.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, I start by thanking my noble friend Lord Rooker for reminding us of the work of Lord Renton. Those of us who were privileged to serve in this House with Lord Renton, and others who served in the other House with him, will well recall what my noble friend said about his work. We would do well to remember it and so I thank my noble friend for reminding us.

As for the amendment moved by the noble and learned Lord, Lord Judge, it would be very difficult, if not impossible, not to feel the force of the logic that he so powerfully expressed. As the noble Lord, Lord Lisvane, said, it is not a very strong response to say that there are protections in the way in which statutory instruments will be presented to this House and the other House. I add to that the fact that there are other protections this House has said are necessary, at least in relation to certain changes, for example those which might affect elements that require—as this House has said—special protection when it comes to the use of the delegated powers this Bill is intended to provide.

Having said all that, there remains a strong logic in what the noble and learned Lord, Lord Judge, has said, and I think we all hope that is carefully considered by the Government, for both this Bill and future Bills. It is fair to say—like the noble and learned Lord, Lord Judge—that at least this Bill has some restrictions on the way these powers may be used, and I commend his requirement—his request—that when Ministers give reasons for the use of these powers, we understand just what they have in mind. This House and the other place should look carefully at that. That said, we will wait to see what the noble and learned Lord will do with his amendment.

What is being said about Amendment 53 is to be welcomed. That should not be overlooked. The noble Lord, Lord Callanan, has added his name to this amendment. It is one of the few occasions—I think the only occasion—when one gets five names on an amendment: when a Minister sees the error of his ways and adds his name to the amendment. That remark may be churlish of me—the noble Baroness, Lady Goldie, is nodding vigorously—but the important point is that we welcome the Government’s acceptance of that amendment. That was the most egregious part of the Henry VIII clause: that it should be possible to use it to amend even this very Bill, which your Lordships have spent so many hours and days debating. It is, therefore, good to see that go.

I ask the Minister—I think it may be the noble Baroness—to confirm one thing. Amendment 53 omits the words “including modifying this Act”, which currently appear in the clause. My belief is that those words were there because without them it would not be possible to use the power to amend the very Act in which the power appears. I believe that is stated in parliamentary counsel’s guidelines on clauses such as this.

I very much hope the noble Baroness will confirm that when she responds to the amendment. I know that attempts were made through the usual channels to make sure that whoever responded to the debate had notice of that question. I hope, therefore, that she has been adequately briefed on it. I think, however, that your Lordships will want confirmation that that is the purpose of this amendment. It was certainly the purpose when it was tabled: that it should take away this most egregious possibility of being able to use the power to amend the very Act itself. I will give the noble Baroness time to get clarity on that, but I can assure her that attempts were made through the usual channels to ensure that she was not taken by surprise by it. I do not know quite what happened.

In any event, we would certainly want Amendment 53, when we get to it shortly, formally moved by the noble Lord, Lord Lisvane, and I look forward to supporting it then. In the meantime, I wait to see how the noble and learned Lord deals with his amendment.

[Baroness Goldie (Con)]

My Lords, let me start on a positive note. My noble friend Lord Callanan was indeed pleased to add his signature to Amendment 53, tabled by the noble Lord, Lord Lisvane, which will remove the ability under Clause 9 to amend the Act itself. I note that this amendment is supported not just by the noble Lords in whose names it lies but by the Delegated Powers and Regulatory Reform Committee of this House. It was one of that committee’s recommendations for the Bill and, given that the Government are happy to support this amendment, we are pleased to be in such illustrious and learned company. It is a heady experience, I have to say.

I am sure that noble Lords will welcome this amendment to a part of the Bill that has continued to cause concern to many throughout its passage. It is important to explain why the Government included such a measure at the time of introduction—this may partly address the point raised by the noble and learned Lord, Lord Goldsmith. When the Bill was first drafted, this provision was not an attempt to hold open a back door to circumventing or undoing any of the protections or constraints in the Bill. Rather, it was seen as a necessary step to provide the flexibility to respond to developments in negotiations. Indeed, the fact that aspects of the Bill may need to be amended, depending on the outcome of these negotiations, still remains. Our acceptance of this amendment does not reflect a change in that regard. Rather, the decision to introduce in due course a withdrawal agreement and implementation Bill, which will give effect to the implementation period, the citizens’ rights agreement and the financial settlement, among other provisions of the withdrawal agreement, provides another door through which the Government may make all the changes required.

Without a strong justification for retaining Clause 9’s ability to amend the EU withdrawal Bill once it becomes an Act, the Government are indeed content to remove that ability. As with our amendment to remove Clause 8, I hope this shows the Government’s commitment to working with Parliament and I reassure the noble and learned Lord, Lord Judge—

[Baroness Goldie]

I listened with interest to that point, but I am not sure that I entirely agree with that construction of the change to Clause 9(2). Amendment 53 means that we will not be able to amend the Bill when it is an Act. It therefore restricts the scope of the power, which seems to have met with the satisfaction of those who have put their names to it. As I have said, that is a positive and, I hope, a helpful reassurance from the Government.

[Lord Goldsmith]

Can we just agree that, as far as the noble Baroness and the Government Front Bench are concerned, it is the belief of the Government that removing the words as proposed in the amendment to which the noble Lord, Lord Callanan, has put his name, would preclude the power in this clause being used to amend the Bill once it becomes an Act?

[Baroness Goldie]

In short, yes—with this caveat. The Government regret that we are not able to be signatories to Amendment 52A, in the name of the noble and learned Lord, Lord Judge, because, as he has indicated, it seeks to remove Clause 9(2) completely, thereby removing the power to amend primary legislation. However, it is always a joy to listen to the noble and learned Lord’s eloquent and well-informed contributions.

Let me explain the Government’s position. Even with the introduction of the withdrawal agreement and implementation Bill, Clause 9 residually serves as a supplementary measure to implement the more technical elements of the withdrawal agreement that will need to be legislated for in time for exit day. These technical amendments may need to be made to primary legislation in exactly the same way as in secondary legislation, so we cannot accept limiting the power in the way sought by the noble and learned Lord. However, I say to him, as he specifically raised this point, that the new transparency procedures for such regulations would require the Minister to make clear in the supporting memorandum what legislation was being amended. I hope that reassures him.

The Government believe that whether a change is made to primary or secondary legislation does not always reflect the significance of the changes being made. Equally, the level of detail involved may be better suited to secondary legislation. I hope that noble Lords will understand the Government’s reasoning on this and will welcome the Government’s compromise through the removal of the ability to amend the Act. I repeat the categorical assurance I have given to the noble and learned Lord, Lord Goldsmith, on that point. This further demonstrates the Government’s commitment to restrict the scope of the powers sought wherever practical. I hope this amendment is enough to reassure the noble and learned Lord, Lord Judge, and that he will withdraw his amendment.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords—

[Lord Goldsmith]

My Lords, my noble friend Lord Dubs, in moving this amendment, described it as a modest proposal. It is modest in two respects. First, for the reason that he gave: all he seeks is to replicate the current arrangements, already approved by Parliament and in operation at the moment. That is not a great change at all from where we are. There is a second reason that it is modest: I pay tribute to his modesty in producing this amendment, having fought for the previous amendment, having persevered, and he is absolutely right to ask the House again to support it. I hope the House will.

It sounds as though the Government are entirely in agreement with the objectives. They agree on the need to protect the most vulnerable children and to provide this way of safety for them to claim asylum where appropriate. It sounds as if the only difference may be over the way to deal with it. Everybody, including my noble friends Lord Dubs and Lord Bassam, the noble Baroness, Lady Sheehan, and the noble and learned Baroness, Lady Butler-Sloss, whose names are on the amendment, recognises that this will require negotiation with other countries, because we cannot do it entirely on our own. Does the Minister agree that if this House were to say in a clear vote tonight what it thinks the Government should do, and put it in the Bill, that will actually strengthen the hand of the Government when they come to negotiate with other countries and others? They will be able to say, “This is what our Parliament wants”—assuming that the other place agrees. Those circumstances will make it much easier to negotiate; that may be the only point.

I am not going to take any more of your Lordships’ time: I think it is time either for the Government to accept the amendment, as I hope they will, or, if they fail to do so, for my noble friend Lord Dubs to divide the House, in which case we will strongly support him through the Lobby.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 25th April 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, I am trying to clarify what the noble Baroness, Lady Falkner, said. I think the issue is not “appropriate” versus “necessary” but “the Minister considers”. I believe the point the noble Baroness was making is that, if something has to be “necessary”, that leaves it open for a court to say whether or not it was necessary. If you say “the Minister considers it”, then the issue is whether the Minister genuinely considers it.

[Lord Goldsmith (Lab)]

My Lords, and what is wrong with that?

In Committee, in a most powerful speech, the noble Lord, Lord Wilson of Dinton, with his vast experience from inside the Civil Service, from knowing just what civil servants and Ministers would like to do, gave your Lordships the advice that,

“in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection”—

a very telling phrase. He continued:

“it should be the strict discipline of an objective test of what is necessary”.—[Official Report, 7/3/18; col. 1180.]

I respectfully completely agree with that. It is absolutely the case that, in circumstances where great powers are being given, one needs to be very clear where the discretion lies. Here it is not just Ministers but civil servants. We have been told that there are 109 Ministers, but under the Carltona principle—I have made this point several times and no one has yet contradicted it—many civil servants themselves in effect exercise these powers in the name of the Minister.

So Ministers and civil servants do what they think is appropriate. That is very different from things that are necessary in order to achieve the objectives set out in the clause. As a practising lawyer, I have no difficulty with the concept of what is necessary, but I believe—to use the words of the noble Baroness, Lady Falkner of Margravine, in a different context—that there is a profound distinction between saying, “You can do what you as a Minister consider appropriate”, and saying, “You can do only what is necessary to achieve these objectives”. If this House has a responsibility, I respectfully suggest that it is to ensure that we do not give the Executive more power than is necessary in order to achieve their objectives. The amendment would achieve that. If the Government want to come back with further clarification on the meaning of “necessary”, although I do not believe that is necessary at all, they can do so.

[Lord Brown of Eaton-under-Heywood (CB)]

I intervene to ask the Minister whether he agrees with this. Although —and I support the amendment—it is right to say that “necessary” involves a degree of objectivity, the clause would actually be applied in court on any challenge, and it would be a judicial review challenge to the making of regulation, on the basis that it is, in the reasonable opinion of the Minister, necessary. That is how the clause as amended would be applied on a challenge in court. Would he agree?

[Lord Goldsmith]

I am delighted to be described as a Minister in that question—not a role that I am eager to take on—but it may be that the question was intended for the Minister himself when he comes to respond.

The important point, as the noble Lord, Lord Tyler, made clear, as did other speakers, is that, as the Bill stands it is subjective and imposes a vague, low test. It is subjective because it is what the Minister considers, and it is a low test because it is what he considers appropriate.

As I told your Lordships previously—I will repeat it just this one last time—as someone who has spent a life as a practising lawyer, a court advocate, advising Ministers and being a Minister, I know that there is all the difference in the world between saying, “You can do this if you consider it appropriate”—nobody can second-guess that—and saying, “You can do this if it’s necessary”. It introduces an objective test, and that is what matters. This is what we invite the House to say to the Government is necessary in these circumstances. That is the only power they should take, and I hope that when the noble Lord presses the amendment to a vote, it will be supported by many Members of this House.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, I first thank all those who have contributed to today’s relatively brief debate, and the many noble Lords I have either spoken to or exchanged letters with between Committee and Report. The scope of the delegated powers in the Bill has, rightly, been one of the most intensively scrutinised areas, and I do not for one moment doubt the best intentions of many of those who have spoken against the Government’s position today. However, I hope noble Lords will listen to my remarks with an open mind, as I hope to offer some new content that we did not cover in Committee.

Let me start by addressing the specific proposition of the amendments on the Marshalled List—Amendments 31, 42, 86 and 87, tabled by the noble Lord, Lord Lisvane. As has been said, they would remove from the main powers in the Bill the discretion of ministerial judgment on appropriateness, and permit action only where it “is necessary” in the context of the specific power. This has been touted as a change from a subjective test to an objective one. But I hope to demonstrate that this is not the case, as I would question what exactly “necessary” means.

For example, in the context of Clause 7, would the course of action a Minister takes have to be no more than necessary to correct the deficiency? Or must it be necessary to correct a deficiency for the power to be engaged in the first place—and if so, necessary for what purpose? Let me address these different scenarios in turn. First let us say, hypothetically, that a court interprets the amendments to mean that a course of action taken by Ministers must be necessary to correct an identified deficiency. It might follow that Ministers could follow only the course of action that does no more than is strictly necessary to correct that deficiency, rather than the course of action that is most sensible.

I know the House likes concrete examples, so let me give an example of how I think this would lead to worse policy outcomes. Take, for example, Section 105B of the Communications Act 2003—with which I am sure all noble Lords are completely familiar. This includes an obligation for Ofcom to notify its regulatory counterparts in other member states, as well as the European network and information security agency, when Ofcom is made aware of a security breach that affects a public electronic communications network or service, and Ofcom thinks it appropriate to make such a notification. It could be argued that it is not strictly necessary to delete the obligation at all. Let us assume, however, that a court accepts that some action is needed in this scenario. A test of necessity could then be taken to mean that the Government should take the minimum action possible to address the deficiency. That might be simply to remove the requirement to share information.

However, the Government's preferred policy, which this House would surely support, is to change it into a discretion that makes it explicit that Ofcom may make notifications of this kind if it wishes. This is intended to support proportionate information-sharing about security matters after EU exit. That amendment is appropriate but arguably not strictly necessary, and might fall foul of the increased restriction offered by the amendments tabled by the noble Lord, Lord Lisvane. I understand the notional appeal of permitting Ministers to act only where it is necessary. But here I agree with my distinguished predecessor, my noble friend Lord Bridges, the midwife, as he put it, to the Bill. It should not be the role of a Minister to be a statutory firefighter, dousing deficiencies in the statute book only where it is absolutely necessary. Instead, I would argue that a more proactive role is the only way that we can ensure the best possible outcome for the statute book.

--- Later in debate ---

[Lord Goldsmith]

I wonder whether the Minister would kindly consider this question: is he saying that he would want Ministers—and indeed, civil servants—to have the discretion to make policy changes from EU retained law without reference to Parliament?

[Lord Callanan]

The powers in this Bill cannot be exercised by civil servants; it has to be Ministers who make the decisions. We have said on a number of occasions that defining a policy change is quite hard. A pure correction can involve a slight policy choice—for instance, whether to designate one agency or another. It can still be a technical correction but it is a policy choice about what to do. But we are clear that we are not trying to make substantive policy choices through this secondary legislation power.

I will refrain from making the full case for the government amendments as they are not on the Marshalled List today, but I will quote the Constitution Committee in justifying our position. It said that such amendments,

“will require explanations to be given for the use of the power which can be scrutinised by Parliament. It will also provide a meaningful benchmark against which use of the power may be tested judicially. In this way, the Government can secure the flexible delegated powers it requires while Parliament will have a proper explanation and justification of their use that it can scrutinise”.

That, to me, sounds like a sensible solution.

Before I finish, let me add the words of the noble Lord, Lord Pannick, who I am sorry to see is not in his place.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

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

[Lord Goldsmith (Lab)]

My Lords—

[Noble Lords]

Front Bench.

[Lord Goldsmith]

My Lords, I take the sense of the House to be that the Front Benches should now speak. The noble Baroness, Lady Ludford, has spoken, I shall speak, then the noble and learned Lord, Lord Keen, and then the amendment will go back to the noble Lord, Lord Pannick. We debated the position of the charter quite fully in Committee, but it is interesting that the charter has cropped up time and again in other amendments, which indicates how important and pervasive this issue is to many people. Noble Lords have repeatedly raised the position of the charter in areas such as general equality, non-discrimination, the rights of children, workers’ rights and the rights of the elderly. Moreover, the concerns that have been expressed in this House are mirrored by concerns expressed by civil society in the form of distinguished non-governmental organisations and many others. My personal postbag has contained more about the charter than any other aspect of the Bill.

I want to say a word about the development of human rights. Of course, I fully accept that this country has played an important and proud role in that. We were very much a part of the drafting of the European Convention on Human Rights, particularly after the Second World War. However—this is part of the genesis of the charter—the convention is essentially limited to classic civil and political rights, such as the right to association and the right to a fair trial. As was demanded when it was brought in, the charter deals with not only those rights—because it is intended to be comprehensive—but many other, more modern, economic rights, which mean a great deal to many people in this country.

I am grateful to the noble and learned Lord, Lord Keen, for meeting with my noble friend Lady Hayter and I to discuss this issue. However, I have to tell him that he has failed to persuade me that the Government’s reasons for excluding the charter from the EU laws that will be downloaded on exit day are good. I am not alone in that. Your Lordships have heard about, and been reminded of, what was said by the Joint Committee on Human Rights and by the distinguished Bingham Centre for the Rule of Law. They said that it was clear beyond doubt that this decision would result in a diminution of protection. Others have made the same point; the noble Lord, Lord Pannick, referred to the well put together opinion of Mr Jason Coppel QC.

As the debate has progressed, I have sensed movement. Whereas in Committee, a view appeared to be put forward on behalf of the Government that the charter did nothing, I now detect that that is not the position; it is accepted that the charter does something, as said by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, but what it does is not liked. That is a very different position. The noble Baroness, Lady Jones of Moulsecoomb, who is not in her place, put it very well: this is a debate between lawyers. That is not what we should be dealing with at this stage. The question now should not be whether this provision of EU law alone should be excluded from the EU law download, and it should not turn on nice, detailed legal argument, particularly argument that is contentious. Even if the charter does only a little, if it does something—the view of many people is that it does a lot more than a little—then, in accordance with the Government’s promise, that should be incorporated into domestic law at this stage like every other provision of EU law. Its removal or modification, if desired, should be done through the process that this House and the other place decide is the right way for us to modify retained EU law—whether that is primary legislation, which would be our preference and was the preference of this House when it voted last week on certain rights, or some other process of delegated legislation. The key point is that if the Government want to modify how the protection of the rights of workers, citizens, the elderly and children appears in the charter in any way, it should be through that process.

As the noble Lord, Lord Pannick, reminded us, rightly, at the beginning—because it is what this is all about—the Government’s position is that the Bill is intended to be straightforward and to put on the UK statute book, on exit day, the provisions of EU law currently in force. Thereafter, radical policy changes and choices will be made—there will be occasions for that—and once the scrutiny of the Bill in this House and the other place is complete, we will know whether those routes are to be solely through primary legislation or through delegated legislation. There will be a process for that if we think it should happen.

For now, the issue is simple: should the promise from the Government—indeed, from the Prime Minister herself—in the foreword referred to by the noble Lord, Lord Pannick, that the rights on the day after exit will be the same as those on the day before, be respected or not? As has been said more than once, including by the noble Baroness, Lady Ludford, what is unique about this issue that means we apply a different process to it from that applied to everything else? That is the point I invite noble Lords to consider as we vote, as I hope we will, although it will be for the noble Lord, Lord Pannick, to say.

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

On the point made by the noble and learned Lord, Lord Judge, is the noble and learned Lord, Lord Goldsmith, not assisted by the fact that the charter applies only to EU law and that the law on murder is not Union law?

[Lord Goldsmith]

It is always good to have a second argument when you are in front of the noble and learned Lord, Lord Judge.

[Lord Judge]

Perhaps, then, we had better find out what “the sovereignty of Parliament” means.

[Lord Goldsmith]

I come back to the central point I want to make. The Government made it clear and promised that rights would remain the same on exit day, but they could then be subject to change through the processes agreed and determined by this Parliament. Of all EU laws, the charter alone is being excluded. That drives one to question why that should be. Is it an ideological reason? Is it not wanting to see something that has “EU” attached to it? Or is it—which will be even more sinister and would worry me enormously—that there is an unhappiness and suspicion about fundamental rights? If there is any element at all that what lies behind this is a suspicion about fundamental rights and a suspicion that people should not be able to exercise those rights, that would be deeply unsatisfactory and a very good reason for not accepting the Government’s exclusion of this.

[Baroness Deech]

Would the noble and learned Lord agree that what is special about this is that the judges of the ECJ, whatever sort of court he estimates that to be, will keep interpreting those rather vague principles on and on, decade after decade, and that all those interpretations will have to be brought back here, unforeseeable and maybe irrelevant as they are? That is what is different about it.

[Lord Goldsmith]

I am advised that that is not a request for clarification which is appropriate on Report. I have dealt with this question before. After exit day, it will be British judges who interpret the EU retained law. There are questions about regard they will have to decisions which relate to the same law afterwards—those we will debate at another time during Report—but the idea that, if the charter is included, there will be references to the Court of Justice of the European Union is simply not right.

I have been driven, and I apologise for it, to the view that it is an ideological reason, and we have heard one or two speeches which seem to support that, but the people outside here—it is delightful that we still call them the people on the Clapham omnibus in court and in this place—will wonder what it is. They will look at the charter; they will see the rights in it, all of which they would think are very good things to have—they would not perhaps understand all the details as when they apply and when they do not—and wonder what the Government are doing in saying that it alone is excluded. There has never been a good answer for that. I do not anticipate that we will get it now either. The noble and learned Lord asks why not. It is because he and I have spoken about this several times and I have not heard it yet.

[A noble Lord]

Experience, dear boy.

[Lord Goldsmith]

I will listen attentively to what the Minister says, of course, but I do not anticipate that we will hear anything new. In those circumstances, I hope that the noble Lord, Lord Pannick, will ask the House to state its opinion. I will be glad to go in the Lobby with him then, as I hope will many Members of the House.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank all your Lordships for an interesting debate which has addressed some of the issues in considerable depth. In a short but telling address, the noble Lord, Lord Howarth, noted that he was not a lawyer, but he exhibited a depth of understanding and a delicacy of touch in respect of our constitutional settlement that is absent from many lawyers, including, I fear, one or two who have spoken in this Chamber.

--- Later in debate ---

[Lord Spicer (Con)]

My Lords, I shall give a brief lay man’s perspective. Being brief, I shall follow the advice of the late Cecil Parkinson, who said to after-dinner speakers, “Get up, say you’re very proud to stand before them and sit down”. I shall be a little longer than that, but not very long.

I think that we can all agree on one thing: that pretty well all of us had a fixed view on Brexit before this Bill even reached this House. Tactics is a different matter. I am very interested in the remain tactics so far as the generality of the Bill is concerned; I shall come to the specifics in a moment. They seem to be along the lines of: “We absolutely agree that we are coming out—no, we’re serious; we agree we’re coming out—but we’re coming out to a new single market backed by a strengthened court in such a way that it is quite indiscernible that we have come out in the first place”. This debate is about the court and what part it is going to play in all this. I think that it is generally accepted that the court is not only very powerful but foreign—my noble and learned friend brilliantly summed up the foreignness of the law being introduced—and different. It is based on politics rather than on precedent in law.

I first came to this in 1992. On 3 June of that year, I tabled an Early Day Motion which started the rebellion against the Maastricht treaty, so I have some form. What is the relationship between a debate which was then concerned with the single currency and today’s debate and amendment? There is a close relationship with matters to do with the currency. As Henry VIII recognised, the currency is immensely important. “This Realm of England as an Empire” was all about changing our currency back to gain control over it. The currency is vital, and the question is what the relationship between it and today’s debate is. If we did not come out of the European Union, I would not rely on us retaining our currency and our control over it. It is unimaginable that the European court would decide to run a competitive trading arrangement with the one country left to manage its own economy. It is therefore of enormous importance not only to the future of this country but to this amendment.

We debated earlier whether it counts for anything that we have become so deeply embroiled in foreign law. I suppose that where I differ from lawyers is that I believe that there are things in politics that matter as symbols, even if the lawyers can prove otherwise. It is therefore vital that we kick out Amendment 21 today.

[Lord Goldsmith]

My Lords, the noble Lord, Lord Spicer, has made a very interesting observation, but it seems to go wider than the amendments which the House is being asked to approve, so I shall not say anything about the issues that he has raised. He referred to the “remain tactics”. I am not aware that there are any remain tactics in relation to this amendment. On the basis that we are leaving, all the amendment is about is making sure that it works properly. That has certainly been the guiding principle as far as I am concerned.

On the formulation of the amendment, I do not want to use the word “helpful”, because that is the one word that I do not like—the noble Lord, Lord Faulks, knows that. The problem with “helpful” is that it is a little subjective. A noble Lord, who is not in his place so I shall not identify him, told me in the previous debate that he was going to say something. I said, “Okay. Is it going to be helpful?” He said, “You might think so”. Let me tell you that it was not helpful at all. He might have thought it was, which is the problem with “helpful”. In any event, I do not imagine that the courts will have regard to something that they do not think is helpful for the purpose of the issue before them, so I am happy with “relevant”. The important point is that it will not be perceived as a political decision being made by a court in wanting to follow a decision from the European court. That is the point that we were making in earlier stages on this part of the Bill, and I thank the Minister and his department for dealing with it.

That leads to the fourth question asked by the noble Lord, Lord Pannick, which was about the protection, safeguarding and upholding of the independence of the judiciary. We raised that on the previous occasion; it is hugely important. I join the noble Lord in congratulating the noble and learned Lord, Lord Keen, on coming out and supporting the judiciary at a time when others in government sadly were not. The assurance on that sought by the noble Lord, Lord Pannick, is important, and I am grateful that the noble and learned Lord has succeeded in answering it already—it was slightly out of turn, but it was good. I shall ask him to go a little further, because the obligation to uphold the independence of the judiciary does not rest just on the Lord Chancellor. I believe that the Constitutional Reform Act which set that out imposes that obligation on the whole of the Government, and it is important that it should. We cannot have a situation in which one Minister, in perhaps one of the more political jobs, is able to say unhappy and unhelpful things about the judiciary and think it okay because the Lord Chancellor will stand up and say, “We shouldn’t really be doing that; we should be protecting them”. It is important to recognise that it is the whole Government. I would single out as well the Attorney-General as one who should uphold the independence of the judiciary. When I was in that office, I certainly regarded it as part of my job, although the Lord Chancellor was in that primary position. I would be grateful if the Minister when he replies for the second time could touch on that point and see what assurance he can give.

The noble and learned Lord, Lord Thomas, raised an important point about ossification, as he put it, which is the one worry I have. As this structure works, so far as the Government are concerned, I think that the effect is that, in the areas to which the subsection would apply, the lower courts will be bound to follow decisions within that scope and it is only the Supreme Court that will be able to depart from them. That leads to the risk that the law will ossify and that cases will have to go to the Supreme Court which really do not need to because they are not that important—although it is important to clarify the law. The noble and learned Lord’s suggestion that the Government should look at the possibility of widening this so that the courts of appeal in different parts of the United Kingdom would be able to depart from what would otherwise be binding law is a good one.

I think that this suggestion would also be welcomed by some others—although I have not specifically raised this with them—who are worried about this provision. They are aware that there are rights—for example, in the field of workers’ rights—where there is some movement in EU law and are concerned that, as it stands, the retained EU law that we will have will lag behind what happens in other jurisdictions, which we all hope will still be partners, although not partners in the same Union. They are concerned that if this has to go to the Supreme Court it may create an unhappy difference between them. There may be circumstances where we all know that a particular piece of law is right for consideration by the top court, but it takes time to get there and it may not always get there.

I was going to ask the Minister whether he could give any assurances about how the Government would assist, at least where they are the other party, in getting cases to the Supreme Court where there is good reason to think that a relevant decision will be departed from. But it seems to me that opening this up to the courts of appeal would actually be a neater and more traditional way of doing that. I look forward to hearing what the Minister has to say about that. I should have mentioned at the outset that my name stands on the original amendments as well.

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords for the contributions that have been made. With respect to the point raised by the noble and learned Lord, Lord Goldsmith, about the position of the Lord Chancellor and the rest of the Government, perhaps I might repeat what I said earlier: I assure the House that the whole Government, the Lord Chancellor especially, steadfastly defend the independence of the judiciary. I believed I had said that before but I am happy to repeat it.

On this question of the ossification of the law, which has been raised, particularly by the noble and learned Lord, Lord Thomas—indeed, it is a matter that we have discussed—we have to remember that until exit only the Court of Justice of the European Union is in a position to see us depart from a previous decision of that court. The timeline for taking a case through the CJEU does not bear scrutiny in comparison with the timeline for taking a case to the United Kingdom Supreme Court. The feeling of the Government is that if we are removing the Court of Justice of the European Union, it is appropriate to put in its place the United Kingdom Supreme Court in that context, and that is what we have sought to do and what we intend to do.

That is a policy decision, I appreciate, and there is a suggestion that perhaps it can be brought down to the Inner House of the Court of Session, and the Court of Appeal. That has been considered, but we do not feel at this time that that is the right way forward, so I cannot give any reassurance that we intend to revisit that point. I feel that the decision we have made is the appropriate one in the circumstances but clearly we will have to consider in due course whether that gives rise to any difficulties with respect to the reference of cases to the Supreme Court.

As the noble and learned Lord, Lord Goldsmith, is aware, it is open to the Supreme Court to, in effect, accelerate cases that it considers to be of particular materiality of importance. Therefore, that facility is already available. But I have discussed this matter with the noble and learned Lord, Lord Thomas, and it is not our intention to revisit it before Third Reading. I hope that noble Lords will be able to support the government amendments.

--- Later in debate ---

[Lord Cormack]

My Lords, I thought the Minister was a little harsh on the noble Baroness, Lady Hayter, and on the amendment which the House passed by a very large majority last week, but let that pass for the moment. I am grateful to my noble friend for making a genuine attempt to understand some of the concerns which can be summarised very briefly. This House is very concerned that taking back control means Parliament taking back control, not the Executive amassing more power to themselves, so he must understand that we will all want to read what he said. Some of it seemed very helpful but we will want to look very carefully at what the Government are actually proposing. It seems a gentle move in the right direction but, just as we have to consider carefully what the Minister has said, I say to him with great respect that he has to reconsider what the House decided last week, because it decided by a very large majority.

A final word of thanks to my noble friend: he has been dismissive of a number of pleas that some matters should be returned to on Third Reading. One understands why, but at least he has been emphatic tonight in realising that we will have to come back to some matters on Third Reading, and for that I thank him.

[Lord Goldsmith]

My Lords, I think three things emerge from that. First, there is a recognition, with thanks, that the Minister and the department have accepted that their previous approach to how you identify the status of retained EU law is not acceptable. That was the primary point made in the reports that we discussed at earlier stages of the Bill, and that is the first point that the noble Lord, Lord Pannick, made. I entirely agree that that is undoubtedly a step in the right direction.

The second point that emerges is the one made by the noble Lord, Lord Cormack, that this touches on the amendment passed by the House and moved by my noble friend Lady Hayter, and the Government therefore have to take account of what this House has said. That leads to the third point, which is that this is very complicated, which was apparent from what was said by the noble Baroness, Lady Bowles, and it is perhaps difficult for us all to completely grasp the implications. Under normal circumstances it would have been enormously helpful if the Government had tabled something like this at an earlier stage so that it could have been considered by our very expert committees, the Constitution Committee and perhaps the Delegated Powers Committee. It makes it more difficult for us. However, the Minister has recognised that more needs to be said about this and more needs to be discussed, which is why he proposes that—as the noble Lord, Lord Cormack, says, perhaps alone of the matters that we have discussed—this issue can come back at Third Reading.

I am not quite sure at the moment exactly what the Minister has in mind. Does he want to press these amendments today and then discuss them—or just leave them until Third Reading, which would be very welcome? I am glad that he is giving a nod that that is what he has in mind, which is what I would hope. In those circumstances, meetings with noble Lords, and indeed noble and learned Lords, can be organised to consider the matter further. Obviously we will read what he said very carefully in Hansard, and if there is any further information that the Minister can give before the meetings then that would be helpful as well. On that basis, we express qualified support for the principle of the movement that the Minister has indicated.

[Lord Callanan]

My Lords, I can be very brief in the light of the debate. I thank all noble Lords who have contributed. I express particular thanks to the noble Baroness, Lady Bowles, for tabling her amendment, which has resulted in this helpful debate.

As I said in opening, I recognise that the state of this legislation is a complex and vexed issue. As a non-lawyer, I have been struggling to get my head around it all as well. The approach that we have taken is one of pragmatism, recognising the existing hierarchy within EU law and seeking to balance effective scrutiny with the need to ensure that the law continues to function. This has not been an easy task but obviously I believe that the solution that we have arrived at is the right one. I accept that the remarks I made earlier were long and detailed and Members will want to reflect on them, so I shall repeat what I said: we think we have addressed the areas of importance where matters turn on the distinction between primary and subordinate legislation. Our discussions so far with many both inside and outside this Chamber have not identified any other such matters, but I repeat that I am happy to return to the issue at Third Reading if other areas are identified.

I thank my noble friend Lord Cormack for his contribution. I hope my remarks were not seen as dismissive of the House’s amendment the other day; of course we accept the decision that was made, but I thought it helpful for us to outline our initial thinking on the possible effects of that amendment at the earliest possible occasion. I also thank the noble Lord, Lord Pannick, for his remarks. I am happy to confirm that either I or officials are happy to meet any other noble Lords who have concerns once they have had a chance to read the remarks that I made earlier today. With that, I hope I have convinced the House that our approach is the right one, and I beg to move.

--- Later in debate ---

[Lord Callanan]

I wanted to move the amendments now. I am happy to reflect further if any points are identified in the meantime that can be brought forward at Third Reading, but I still want to move the amendments.

[Lord Goldsmith]

I was asking the Minister whether he was prepared to leave these amendments to be moved at Third Reading or whether he wanted to proceed with them and then allow amendments to them. I had understood from the body language that was exchanged between us that he would move them at Third Reading, which would allow time for discussions and possible tweaking or perhaps something more radical. If he is going to move them now, though, it is important that he confirms he would not have a problem if amendments to his amendments were put forward at Third Reading, because that at least would mean that whatever was required could be dealt with then, rather than him moving his amendments now and for us to be told at Third Reading, “Sorry, too late, that amendment has been passed. You can’t bring it back”. Could he confirm that? Again he is nodding but I am reluctant to interpret the nod without an element of verbal assurance. Perhaps he can help with that.

[Lord Callanan]

Yes, I am happy to provide that assurance. As I said, it was a long and detailed speech on this area, and Members will want the opportunity to read it in detail and reflect further on it. I think I want to move my amendments now while indicating that, if there are still concerns, we would be prepared to return to the issue at Third Reading.

[Lord Goldsmith]

Forgive me; would he accept that amendments could be made even to these amendments? I am not suggesting that he will accept our amendments, but does he accept that they can be made?

[Lord Callanan]

I accept that, yes.

--- Later in debate ---

[Lord Cashman]

My Lords, I added my name to this amendment but too late for it to be printed in the Marshalled List. I congratulate the noble and learned Lord, Lord Wallace of Tankerness, on the way he moved this extremely important amendment. He referred to our earlier discussions on the Charter of Fundamental Rights, when the House was nearly full, and this connects directly to that debate.

There are deep concerns, not only within the House but outside, among respected and established non-governmental organisations and, indeed, the Equality and Human Rights Commission. I would expect the Government to clutch this amendment with open hands and embrace it to their chest, but I have worked with the Minister in the European Parliament and I know that I am not about to see that happen—although, as my noble friend Lady Lister said, the amendment puts into words the assurances offered by the Government and Ministers.

As I said earlier, there are real, deep concerns that rights will be attacked once we leave the protection of the charter and the treaty establishing the European Union and the Treaty on the Functioning of the European Union. Most of these rights arise out of Article 13 of the treaty of Amsterdam, which gave the European Union a legal basis upon which to act on the grounds of race, ethnicity, religion, belief, age, disability or sexual orientation; gender was covered elsewhere. They define the very societies and countries in which we choose to live.

I look forward to the Minister replying and surprising me by saying that the Government take this amendment on board and will embrace it. If I am not surprised, I will return to this issue. Others outside the House will return to this issue. I believe that it defines the kind of country we want to be post Brexit. Now more than ever, we need to offer reassurances not merely within the two Chambers of this Palace but within the Bill.

[Lord Goldsmith]

My Lords, one of the privileges I had when I served as Attorney-General was to be able to see government proposals, to consider them, to see where they were compatible with our obligations and sometimes to use incompatibility as grounds for persuading Ministers not to go down a particular path.

In considering this amendment, it is important to understand what is meant by underpinning because it risks concealing the important proposition that there are certain things that the Government simply cannot do at the moment—nor can other Governments who are members of the EU—because of the commitments that have been made. A directive has to be complied with. We cannot override it overnight. In these circumstances, the noble and learned Lord, Lord Wallace of Tankerness, is right to raise this hugely important point: what will be the underpinning in the future?

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I will speak briefly to this amendment, to which I have added my name. There is little I can add to what the noble Lord, Lord Deben, and the noble Baroness, Lady Jones, said so eloquently. The current Clause 4 is unsuitable, so we have submitted a proposed new Clause 4, which covers a much broader area than the environmental concerns. However, because so much environmental legislation stems from the EU, it is particularly important for the Government’s environmental commitments that we carry these forward.

The amendment aims to preserve more comprehensively than the existing Clause 4 rights, powers, liabilities, obligations, restrictions, remedies and procedures, all derived from EU law and incorporated into domestic law via the ECA. Where such rights are incorrectly or incompletely transferred it imposes a duty to remedy this, and we feel that it is important that the Government take this duty on board. There will be transition gaps and incomplete transfers. Examples of transition gaps which put environmental protection at risk include, as the noble Baroness, Lady Jones, said, the requirement to review and report on adequacy and implementation of laws such as the air quality directive and the habitats directive. As the noble Lord, Lord Deben, said, if we are not doing this in the right way, will the Minister please tell us which way we should be doing it? I fully support this amendment and I will support the amendment that comes forward on Monday.

[Lord Goldsmith (Lab)]

My Lords, in supporting this amendment also, I start by just noting one thing we have learned during the passage of the Bill so far: how very complicated the process of exit will be. That is important, because, as the noble Lord, Lord Deben, rightly reminded us, the purpose of the Bill is to enable us to leave, but with the same rights and obligations, and the same protections, the day after exit as the day before. The Prime Minister made that promise very clear. This amendment would help to make sure that this promise can be kept. If one looks at the way the Bill currently deals with rights that are being passed over, one can see the complication in the provisions as drafted.

I will not repeat the arguments that were raised in Committee, nor indeed repeat those that have been so well made by my noble friends Lady Jones and Lord Puttnam and by the noble Baroness, Lady Bakewell. However, one thing is clear: if there is a defect in what the Government are doing and if the provision will not pass across into our law the day after exit those things it should, the amendment simply says that this is a mechanism by which they can be brought in. I think the Government would want to welcome that, because it means they could achieve what they want to achieve in what is, as I said, a complicated area in which it may be difficult to be sure that everything has been done as it should. Of course, if it is unnecessary because all the rights have been passed across, in those circumstances there will be no need for the clause to operate. However, it will be there to achieve what is required.

I will make one other point, because it may look to some slightly paradoxical to use a ministerial power of regulation to achieve this when so much concern has already been expressed in this House, and will be on amendments to come, about the overuse of delegated powers. This differs from the other powers that concern has been expressed about. It is not a discretion of the Minister to use the power but an obligation to do so if certain conditions are met: if in fact—and it is an objective fact which can be verified or not—retained EU law does not give effect to,

“rights, powers, liabilities, obligations, restrictions, remedies or procedures created or required by EU law in force immediately before exit day”.

Therefore, it makes sense to do that.

The noble Lord, Lord Deben, made the sensible suggestion that if this amendment does not quite do it the right way, the Government can and should come back with an alternative method at Third Reading. However, that they should do something to make sure this gap is plugged seems a strong and correct argument, and for that reason I support the amendment.

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Brown of Cambridge, in absentia for her Amendment 12 and to my noble friend Lord Deben for speaking to it on her behalf. I note that this amendment is very similar to an amendment tabled in Committee by the noble Lord, Lord Krebs, to which the noble Baroness was a signatory. As was the case with that amendment, Amendment 12 seeks to amend what EU law is retained through Clause 4.

As this House is aware, and has been said earlier within the debate, one part of EU law that the Bill does not convert into our domestic law is EU directives. The reason for this is clear. As EU directives as such are not a part of our domestic law now, it is the Government’s view that they should not be part of our domestic law after we leave the EU. Instead, the Bill, under Clause 2, is saving the domestic measures that implement the directives, so it is not necessary to convert the directives themselves. This is not only a pragmatic approach but one that reflects the reality of our departure from the EU. As an EU member state, we were obligated to implement those directives. When we leave the EU, those obligations will cease.

However, the Bill recognises one exception to this approach. Where, in a case decided or commenced before exit day, a domestic court or the European Court of Justice has recognised a particular right, power, liability, obligation, restriction, remedy or procedure provided for in a directive as having direct effect in domestic law, Clause 4 will retain the effect of that right, power, et cetera within UK law.

That seems to the Government to provide a clarity which it is important for this Bill to achieve, and it is why we believe that Clause 4 as currently worded strikes the right balance—ensuring in respect of directives that individuals and businesses will still be able to rely on directly effective rights that are available to them in UK law before exit day, while also providing clarity and certainty within our statute book about what will be retained in UK law at the point of exit.

I shall explain to my noble friend Lord Deben what we see as a difficulty. This certainty would be undermined by the amendment, placing both businesses and individuals in the difficult position where they are uncertain about whether the rights they rely on will change. It could also create practical difficulties for our courts following our exit. There could be new litigation about whether implementing legislation correctly or completely gave effect to a pre-exit directive, and whether Ministers had fulfilled the duty in the amendment’s proposed new subsection (3) to make implementing regulations. This could continue for years after our exit from the EU, effectively sustaining an ongoing, latent duty to implement aspects of EU legislation long after the UK had left the European Union.

I think it would be acknowledged that it would be strange for Ministers to be obligated to make regulations to comply with former international obligations which the UK is no longer bound by. Although Ministers might find that they were obliged to make regulations under the amendment, it would presumably still be open to Parliament to reject the instrument and either require it to be revoked or decline to approve it, depending on the procedure involved, yet the Minister would, under the terms of the amendment, remain under a legal obligation to make regulations. I think that this gets to the heart of the problem: how is that tension to be resolved?

Therefore, I say to my noble friend Lord Deben that, although I understand that the genuine intention behind the amendment is to give confidence and certainty, in practice I do not think that it would necessarily achieve this, and I respectfully suggest that the real consequence would be confusion.

Furthermore, the amendment specifically implies that the Government would have to undertake a thorough investigation, as soon as possible, of all the EU directives that have been domestically implemented over the course of this country’s 40-plus years of EU membership to ensure that they have correctly and completely implemented them all.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Monday 19th March 2018 Lords Chamber

[Lord Cormack (Con)]

My Lords, I had not intended to intervene on this amendment but I am slightly provoked by my noble friend Lord Spicer. There is a fundamental point here which was touched on both by the mover of the amendment and by the noble Lord, Lord Liddle. In fact, they have unwittingly or otherwise echoed what the Government have been saying from the word go—that they want us to remain a European power. There is no question of our not remaining in Europe; we are just detaching ourselves from the European Union. That does not bear too close an examination, because of course we are a European power and a European country.

If we are to remain an essential part of Europe—a nation that truly pulls its weight within Europe—we have to have standards that are similar to those accepted throughout Europe. Whether in the area of environmental control or the quality of sea water, which we touched on a couple of weeks ago, or other things, such as the medical issues that we have debated, we have to have rigorously upheld standards that are similar to and commensurate with those of our great neighbours, France, Germany and the rest of the European Union. Therefore, when my noble friend responds to this brief debate, it is important that he underlines the Government’s commitment to standards that are comparable with those enforced by our European neighbours. Although they will have to be enforced in a different and more domestic way, enforced they must be.

[Lord Goldsmith (Lab)]

My Lords, my noble friend Lord Haskel has raised some important issues, which we should carefully consider—I hope that the Government will do so. He is plainly right that one of the consequences of our departure from the European Union will be the loss of the benefit of EU governance institutions and the standards that they set and enforce. It is worth underlining the word “enforce”, as the noble Baroness, Lady Ludford, did. This is not just about having the standards; it is also about having institutions that are capable of enforcing them.

Of course, the Government will say that we can and we should take over ourselves the setting and enforcement of appropriate standards. But there are challenges in doing that, to some of which the noble Lord, Lord Cormack, has referred. If we are going to have standards in which people have confidence, they need to be delivered by institutions in which there is demonstrable independence. That then gives rise to credibility: the standards and the institutions that set them must be seen to have a distance from Ministers and not be subject to expedient ministerial policy-making. We have so far become used to—indeed, perhaps taken for granted—the fact that there are standards that are set by the current EU institutions which have rigorously debated and taken into account national standards. However, as my noble friend said, we need to be assured that standards—he mentioned in particular general data protection rules, but other standards as well—are not lowered.

That raises an important point. In this Bill, the Government have taken the view, in my view quite rightly, that the fundamental rights that are protected by the European Convention on Human Rights, now by our own Human Rights Act, cannot be changed without parliamentary scrutiny—indeed, only by primary legislation. That is not the position that is proposed in relation to other rights or standards that are, in many people’s eyes, as important. We need clarity on these issues. It is not enough for the Government to say that they recognise the need to maintain high standards of protection; they need to explain how those high standards of protection are in fact to be achieved, and to do that in a way that gives rise to confidence.

My noble friend Lord Liddle raised a further important point—and, if I may say so, he played an important part in this himself in previous years—about the conversations and co-ordinations that have taken place between European countries in setting policy and the standards that go with policy. It would be good to hear from the noble and learned Lord the Minister whether those will be continued and in what way.

There is much to support in this amendment and in the principle that my noble friend has put forward. It is supported by the noble Baroness, Lady Jones of Moulsecoomb, and I do not think for one moment that the fact that she has added her name to it means that the amendment will be looked at less—quite the opposite, I suggest. We look forward to hearing what the noble and learned Lord has to say in response to this amendment.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank the noble Lord, Lord Haskel, for tabling this amendment. I believe the intention behind it is to ensure that United Kingdom law will continue to function effectively after our departure from the European Union. This is, of course, the aim of the Bill, and so I welcome his engagement on its content. However, despite these intentions, the Government cannot accept the amendment.

The Bill will take a snapshot of European Union law—including the rights, freedoms, protections and standards it brings—so far as it applies within the United Kingdom immediately before exit day, and seek to retain it in UK law, so far as is practical. It will then be our priority to ensure it will be able to operate consistently and without deficiency within our domestic law through the use of powers given in the Bill. This includes ensuring that there is suitable provision for the transfer of existing functions and roles carried out by the EU or its institutions while we are a member. It is of course right that the Bill is able to do this.

The United Kingdom has a long-standing tradition, one that predates 1972, of ensuring that our rights and standards are protected domestically, and of fulfilling our international obligations with regard to these matters. The decision to leave the European Union does not change this. Any regulation to correct a deficiency in retained EU law, within which such rights, freedoms, standards and protections will sit, will of course be subject to the overview of this Parliament: it will be subject to the established procedures of parliamentary scrutiny and, in addition, to the work of the sifting committee that the Leader has indicated will be constructed in this House.

The noble Lord, Lord Haskel, said that standards would be subject to Ministers. But standards, I suggest, will be subject to parliamentary scrutiny. I say the same in response to the noble Baroness, Lady Ludford. We will retain the law and it will not be empty of meaning because again, in so far as we implement it in domestic law, it will be the subject of parliamentary scrutiny. The noble Baroness, Lady Jones, suggested that retained EU law would be worthless if there were no body to oversee it, but that body will be Parliament. No body is better equipped for that task than Parliament.

On policy co-ordination, referred to by the noble Lord, Lord Liddell, of course, that is bound to be a matter of negotiation and not one for this particular Bill. We want to negotiate questions of the extent and depth to which we co-operate with members of the EU after we leave. As regards standards themselves, is it suggested that because we are in Europe—as the noble Lord, Lord Cormack, observed, we still are and still will be—but not in the European Union, somehow our standards are bound to fall? Is it supposed that Switzerland or indeed Norway do not maintain rigorous standards in regard to consumers, the environment and so on?

--- Later in debate ---

[Lord Keen of Elie]

I am not suggesting that for a moment. I was saying that these matters will be the subject of negotiation going forward; they are not ones for this Bill. What one cannot suggest is that, because we are taking the step of leaving the EU, we are determined somehow to see any diminution in the standards and obligations that we maintain at the present time. As this House will be well aware, the Bill is not designed to legislate for the major elements of any future agreement between the United Kingdom and the EU. Indeed, we cannot unilaterally legislate for our future relationship with the EU without the withdrawal agreement, or seek pre-emptively to provide for the possibility of maintaining particular functions or powers within the UK after we leave the EU.

This Bill instead aims to provide a stable and certain domestic statute book on exit day—a platform—irrespective of the result of the negotiations in any final agreement with the EU. The proposed amendments, therefore, do not assist in that process, but would potentially disrupt any negotiating process that is to be carried on. At the end of the day, I respectfully suggest that the amendment would not benefit the task we have in hand and I therefore urge the noble Lord to withdraw it.

[Lord Goldsmith]

Before my noble friend responds, will the Minister give an assurance as to this? He has talked about the legal difficulties involved and the legal freedom that the Government want, but is he able to give an assurance that whatever protections and standards we leave the European Union with will not thereafter be diminished, save with the decision of Parliament through primary legislation?

[Lord Keen of Elie]

Clearly, the noble and learned Lord has misrepresented to an extent what I just said to the House, because I did not refer to primary legislation—those words slipped into his observation. However, I did point out that, of course, under the process that we have and will have in place, there will be parliamentary scrutiny of the steps we take to implement these provisions in respect of EU retained law after we leave.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Wednesday 14th March 2018 Lords Chamber

[Baroness McIntosh of Pickering]

My Lords, I support the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, in this regard. My question goes to the comment of the noble Lord, Lord Lisvane, about scrutiny. Of course, he is the living expert on the level of scrutiny that an Act of Parliament enjoys in each House at every stage of parliamentary procedure. If the Government are seeking by regulation to achieve the equivalent of what has previously been achieved by an Act of Parliament, do the Minister and the Government have in mind what the level of scrutiny will be? Will it be the usual statutory instrument procedure, and will it be by affirmative or negative resolution?

[Lord Goldsmith (Lab)]

My Lords, we strongly support these amendments, Amendment 153 having been co-signed by my noble friend Lady Hayter. It would remove Clause 9(2) from the Bill entirely, and the more limited Amendment 154 would remove what are probably the most damaging words from it but not the whole of it.

This is the widest of the Henry VIII powers that the Government want to take in this Bill. It would permit regulations to do anything that an Act of Parliament could do, including even amending this Bill, when an Act. Those are the words that Amendment 154, in particular, focuses on. Therefore, as has been said, we could find that, after lengthy debate and a vote in this House and in the other place, the resulting provisions so painfully and lengthily resolved could simply be removed by the decision of a Minister.

The noble Lord, Lord Lisvane, gave some examples and the noble Lord, Lord Beith, gave more dramatic examples, but the critical question is: why is this needed? First, as the noble Lord, Lord Lisvane, rightly said, nobody should be misled by the words that are used. The word “modifying” might suggest at first blush that the provision is doing something less substantial, but in fact the definition of “modify” in Clause 14(1) makes it clear that it,

“includes amend, repeal or revoke”,

so the modification in question could take whole provisions away altogether.

The second point to underline—again, the noble Lords, Lord Lisvane and Lord Bilimoria, made this clear—is that what matters is not good intentions expressed at the moment by the Ministers in charge but what the Act actually provides. As parliamentarians, we would be failing in our job of scrutinising and controlling the Executive if we left Ministers with untrammelled powers simply on the basis that we would expect or hope that they would use them in a particular way or on the basis of them saying that they would not intend to use them in a particular way. That is not what we should do at all.

Therefore, it is no wonder that your Lordships’ Delegated Powers and Regulatory Reform Committee, in paragraph 23 of its report, described this power as “wholly unacceptable”, and that the Constitution Committee, in paragraph 197 of its report, described it as one for which it “cannot see any justification”. I know that the Government’s argument will be that they do not know what will be in the withdrawal agreement and therefore they do not yet know what changes will need to be made, including to primary legislation—for example, to the Immigration Act. However, there is neither a need to take these powers, nor is it right to do so, for two reasons.

First, it is clear that our withdrawal must be subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal—that is what Clause 9 will provide. So if the withdrawal agreement requires changes which cannot be effected by other powers—such as the power to deal with deficiencies under Clause 7—such changes can be incorporated into the statute approving the terms of withdrawal. Not only can such changes be included in that statute; they ought to be, because then they could be subject to a degree of parliamentary scrutiny. I agree with what the noble Lord, Lord Lisvane, and the noble Baroness, Lady McIntosh, said about the significance of scrutiny in this context. They could be subject to the degree of parliamentary scrutiny and approval which important changes to primary legislation should require.

The Delegated Powers Committee noted:

“The Government propose to take very wide-ranging secondary and tertiary legislative powers in the Bill, which would appear to cover every possible need to deal with failures and deficiencies in retained EU law as we leave the EU. Given the sheer width of these powers, it is difficult to conceive of areas where the proposed powers are not sufficient. However if the final withdrawal agreement includes something that is not capable of being legislated for under the regulation-making powers of the European Union (Withdrawal) Act, then Parliament should legislate rather than Ministers. Parliament is capable—


we all have experience of this—

“of passing urgent Bills with extraordinary expedition”.

Paragraph 197 of the Constitution Committee’s report, to similar effect, said

“As the clause 9 power cannot be used until a further Act has been passed—likely to be the withdrawal and implementation bill”—


which is what the Minister told us in a previous debate—

“we cannot see any justification for the inclusion of the power in this Bill. Parliament will be better placed to scrutinise the appropriateness of such a power, and the restrictions and safeguards it might require, when the terms of the withdrawal agreement are known”.

The committee recommended removal of that clause.

That is the answer I give to the noble and learned Lord, Lord Mackay of Clashfern. I hope he knows the high regard in which I and the House hold him, but in circumstances where there is to be an Act, where there are other powers to remove and make changes, this particular wide, untrammelled power is not necessary.

In addition to the strong constitutional reasons why this extraordinary power should not be left to be used by one of the many Ministers who have the power to issue regulations is the reason that it is remarkably widely drawn. We have debated in previous amendments that the formula used here—such provision as the Minister considers appropriate—suffers from the defect that it is both subjective and open ended. As I ventured to advise your Lordships in a previous debate, speaking from my own experience as a former Minister, adviser to Ministers and a practising lawyer, the exercise of a power so broadly expressed would be difficult, if not impossible, to challenge. The noble Lord, Lord Wilson of Dinton, put it memorably in the debate last week as another example of Ministers being given plump pillows of legal protection. That is an additional reason to object to this provision.

However, the primary constitutional reason that I have tried to identify still remains. I hope therefore that, in addition to answering the questions that have been put—including the question put by the noble Lord, Lord Beith, and others as to why the power is needed, and the question raised by the noble and learned Lord, Lord Hope of Craighead, as to the application of the Sewel convention—the Minister, when he replies, will indicate why the Government, in these circumstances, consider the power necessary; and whether they can now see, in the light of the changes made to Clause 9 and the other powers that exist, that they do not need it.

[Lord Skelmersdale (Con)]

My Lords, this has turned into a clause stand part debate by any other name and I have been listening to it very carefully. The second amendment in this group would remove the words in Clause 9(2), “(including modifying this Act)”. This is rather curious because I know that many of your Lordships voted against Brexit in the referendum and in their heart of hearts still believe and hope that Brexit will never happen. That applies not only to noble Lords but also to Members of another place. But those words, of course, would include exactly what they want; namely, the repeal of the European Communities Act 1972.

--- Later in debate ---

[Baroness Goldie]

If I can continue, I might be able to reassure my noble friend by giving some illustrations of where the Government anticipate these powers may need to be used.

[Lord Goldsmith]

Before the Minister resumes—without wishing to interrupt her further—can I just take her back to the point she made about the Enterprise Act and the Third Parties (Rights against Insurers) Act? I do not have them in front of me, but does she agree that they are Acts of a very different nature to the constitutional Act that this Bill—and the surrounding legislation—gives rise to and were not subject to the same degree of scrutiny as the current legislation is being subjected to?

[Baroness Goldie]

I was merely trying to be helpful in giving your Lordships some indication of what already exists. I was simply reassuring your Lordships that the Government were not having some legislative aberration by introducing powers just for the sheer merriment of doing so.

There have been some suggestions that we should make changes now but I would submit that that is simply not responsible. We cannot be certain of the exact detail of the withdrawal agreement until the final text has been agreed, and attempting to second-guess its content by legislating for it now would be premature and ill advised. We need to be prepared. Let me give an example; I hope this will reassure my noble friend Lady McIntosh. In earlier debates in Committee, various noble Lords asked the Government to give clarity, for example, on the status of cases that are pending at the Court of Justice of the European Union at the moment of the UK’s withdrawal. The Government suggested that such clarity was desirable but can be provided only through a legally binding agreement with the EU. Before that point, we can legislate for what we would like the CJEU to do, but we can have no certainty as to whether it would actually do it.

It is our clear hope and expectation that we will reach a withdrawal agreement that includes provision that UK cases pending before that court on exit day will continue through to a binding judgment, as set out in the joint report published in December. As noble Lords know, that agreement would then be put to a vote in both Houses of Parliament. After that point, if the UK Government, Parliament and the EU have all assented to the proposition that these cases should continue to a conclusion, amendments may be required to the EU withdrawal Act to facilitate that agreement. That was the point my noble friend Lady McIntosh was making. Bearing in mind the limited number of those cases in practice—and the level of agreement that would already have been demonstrated to the general proposition—it does not seem to me unreasonable that it should be open to the Government to implement it by secondary legislation. The noble Lord, Lord Bilimoria, asked a very fair question about how many regulations we anticipate making. I do not think it will be extensive, for the very reason that this clause is cut off on exit day.

[Baroness Goldie]

I understand what the noble Lord is saying, and I accept in principle that that is a fair assessment of the position, but that is not to say that that should preclude the flexibility to deal with something if it does arise. That is why the Government maintain that there is an argument to justify retention of this provision.

[Lord Goldsmith]

To take that slightly further, following the question from the noble Lord, Lord Beith, if the withdrawal agreement provides that, after exit, there will be some continuing cases that can be decided by the CJEU, that is what the withdrawal agreement will say, and that, therefore, can easily be provided for in the implementation of the withdrawal agreement legislation, can it not?

[Baroness Goldie]

No one is saying that it could not be; it is just that there may be advantage in anticipating that and trying to introduce an earlier and swifter procedure to deal with it. I suppose that that, in essence, is the justification or argument that the Government are advancing: we want both flexibility and, if necessary, rapidity in responding to whatever situations are there.

[Lord Goldsmith]

If, as the noble Baroness’s answer suggests, it does not need to be done in this way but can be done in the other way we are suggesting, that really answers the question that has been posed to the Government: why do you need this wide-ranging, constitutionally unacceptable power? The answer appears to be that the Government do not need it, because it can be done in the way that others have indicated.

[Baroness Goldie]

I accept the noble and learned Lord’s argument, but I respond by saying that in a sense we are trying to ensure that we have the maximum flexibility and the ability to respond rapidly. Just because something may be competent to be done elsewhere does not mean that there may not be merit in retaining the power here—a power that, as noble Lords have quite rightly identified, will disappear on exit day.

A number of noble Lords raised the question of scrutiny. I emphasise that the procedure set out in Schedule 7 to the Bill makes clear that such legislation would be under the affirmative procedure; in other words, no regulations to amend the Act itself can be made before Parliament has had the chance to debate and vote on them. The noble Lord, Lord Beith, envisaged a very radical situation. I have to say in response that if that were ever enacted, Parliament would have a very strong view about the proposal he described. That is, indeed, the role, the function and the democratic responsibility of Parliament.

I understand the legitimate concerns that some noble Lords have raised about the seemingly broad scope of the Clause 9 power. It is also worth remembering that after changes made in Committee in the Commons the use of the power is subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal of the UK from the EU. This power is therefore already subject to exceptional constraints, a point helpfully reaffirmed by my noble and learned friend Lord Mackay of Clashfern.

The noble and learned Lord, Lord Hope, raised a significant matter: how regulations under Clause 9 affect the Sewel convention. I am informed that the Sewel convention applies to primary legislation only and that the Government will not make provision in devolved areas under the Bill without consulting the devolved Administrations and would not normally do so without their agreement. I hope that to some extent that meets the point that the noble and learned Lord was raising.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.

We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.

I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.

In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.

[Lord Goldsmith (Lab)]

My Lords, these are hugely important amendments. The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable. I am sorry that the noble Lord, Lord Lisvane, is not present today, for reasons that we all entirely understand. Noble Lords will recall what he said at Second Reading, when he talked about this as the biggest transfer of power from Parliament to the Executive in peacetime. I entirely agree. I agree with what has been said by the noble Lords, Lord Wilson of Dinton, Lord Cormack and Lord Lang of Monkton—with whom, or rather under whom, I was privileged to serve on the Constitution Committee, when he chaired it. I agree also with the noble Lords, Lord Beith, Lord Wallace of Saltaire and Lord Campbell of Pittenweem. Everybody has taken the same position in relation to that.

Let us look at the key amendment, Amendment 71, to which I am privileged to have added my name, just to note the importance of what it does. It would replace the statement that “the Minister considers it appropriate” with “it is necessary”. As a former Minister, as a former adviser to Ministers and as a practising lawyer, I fully see the significance of that change. I know as a lawyer that if I am able to say to the judge, “All that is required is that the Minister considers it appropriate—how can you say that he did not? How can you second guess that?”, I am home and dry. If, on the other hand, I have to show that it is necessary—not just in the Minister’s decision, not just on reasonable grounds, but that it is in fact necessary—then that is the test that the court has to undertake in order to satisfy itself. The point behind these amendments is that nothing less than that will do to enable this huge transfer of power to the Executive from this House.

I do not need to repeat the remarks made by other noble Lords about how taking back control should not mean taking back control by the Executive—that is not what anybody had in mind. I do not need to repeat the remarks about the number of Ministers that this gives power to. I am not even sure that the figure of 109 is right. I recall, in government—no doubt the Minister will tell me that it does not apply here—that all Ministers can act, and often do act, by their officials. The Carltona principle means they can sign the instruments, so it may mean that the 109 is multiplied manifold. I have no doubts about their good intentions, but this is not what our system requires, and we should not be giving it up in these circumstances.

Other noble Lords, including the noble Lords, Lord Bilimoria and Lord Dykes, and the right reverend Prelate the Bishop of Leeds, have also spoken powerfully in favour of these amendments.

I have a couple of other points to make, as most of what I wanted to say has already been powerfully and clearly expressed by noble Lords. The most important point is the one I started with, which is that the Minister must see the unanimity of view, as it appears at the moment, around the Committee about the change that needs to be made. We can debate whether it is essential or necessary. I rather agree with the noble Viscount, Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the better one to have, but the end aim is the same. That it is not a decision for the subjective view of the Ministers is the other key point on which we agree.

One point that I want to deal with, which has not had much discussion so far—although the noble Lord, Lord Beith, raised it—is Amendment 244A. It proposes that there should be a statement by a Minister as to the need for the change, and it is not simply a policy change. There is merit in that proposal, I would suggest, though not as a substitute for the amendments we are proposing. I draw attention to the similarity with Section 19 of the Human Rights Act, an excellent provision which requires that a Minister has to certify that a piece of legislation is compatible with the convention rights. We see it on the very front of this Bill itself. I am sorry that the noble and learned Lord, Lord Irvine of Lairg, is not in his place. He had a lot of involvement in making sure that that worked, by insisting that when it came to certifying that legislation was compatible, it was not just on a wing and a prayer.

[Viscount Hailsham]

I am grateful to the noble and learned Lord. Taking his point, if you were to combine the certification together with the requirement that the Minister had to have reasonable grounds for triggering regulatory power, then one has a very high degree of protection, does one not?

[Lord Goldsmith]

I am grateful to the noble Viscount. I would go further. First, I would say that the amendment needs to change the test so that it is “necessary”, not “considers necessary”, not “considered on reasonable grounds”. Secondly, the way the Human Rights Act certification works is that it is not enough for the Minister to have “reasonable grounds” that it may be compatible. What is required—at least when I was in government, and as a result of the diktat that was given to the Civil Service—is that the Minister must have legal advice that, more likely than not, the court would agree. I am glad to see the Minister nodding because that means that the same principle is being applied under this Administration as under the Administration in which I was privileged to serve.

Therefore, I take the noble Viscount’s point, but it is important that it is not just a consideration but an actuality based not on reasonable grounds but on fact. Obviously there is some judgment to be made about “fact” but it needs to be clear and there might, in addition, be a role for something like Amendment 244A.

This is the second time today that this Committee has considered the use of the word “appropriate”. Those who were not able to be present may wish to read the report of the earlier debate when we considered the use of the word “appropriate” in rather different circumstances—whether judges could and should rely on European case law in reaching decisions and whether it was enough that they should find it relevant or appropriate. One noble Lord who is not in his place suggested that the judges could use the law if they found it “helpful”. My worry is that that is exactly what the Government think “appropriate” means here. If this power means that Ministers can make regulations and changes because they think it helpful to do so, that is not what this House should allow them to do.