European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

Wednesday 7th March 2018 Lords Chamber

[Baroness Featherstone (LD)]

My Lords, I support Amendment 58 in the name of the noble Lord, Lord Krebs. I was greatly relieved by the noble and learned Lord’s rebuttal because my interpretation of what we are doing is that we will not have the protection of the recitals and the preambles. Our problem is that any law leaves room for interpretation. EU law in particular is often a reflection of the manner of its birth: it has 28 single parents.

To reassure those of us, particularly from my point of view as the spokesperson on energy and climate change, who do not necessarily trust things to naturally follow and for this Government or possible future Governments to be as keen on some of the standards required in EU regulations and directives, it is in the recitals and preambles that we can gain some measure of comfort, as a guide to the intention of a particular instrument. The recitals supplement the operative part of the directive. They are interpretive tools in the EU legal order, and if we simply transfer the law but not the recitals we are removing a beneficial tool. I am afraid that assurances and good intentions from the Government are not adequate when it comes to something as important as our environmental protection.

It is quite clear that the Bill does not deliver that security and surety. We need certainty in the Bill, so I hope that the Minister will be able to accept the amendment. This amendment is only part of that certainty and protection.

[Lord Goldsmith (Lab)]

My Lords, these amendments fall into two, possibly three, groups. I shall start with the group that has been the subject of the recent speeches from noble Lords—the interpretation of EU retained law. The amendments tabled by the noble Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Krebs, particularly require that the preambles and recitals should be capable of being taken into account when it comes to interpreting EU law. They are completely right, as are other noble Lords who have spoken, that at the moment under EU law the recitals and the preambles are an important part of the interpretation. I have had the privilege of appearing on a number of occasions before the European Court of Justice, both in my capacity as a government Minister and before that as a lawyer retained to argue cases, and it absolutely is the case that, unlike the techniques that we apply when we come to interpret British statutes, the preambles and recitals are very important. It therefore would be significant that they should be capable of being applied in the interpretation of EU retained law after exit day. If they were not it could lead, for example, to the result that a piece of law applied and interpreted before exit day using the preambles and recitals could be interpreted differently after exit day, and that would be damaging to legal certainty.

I very much doubt that the Government intend that there should be any difference, and I believe they intend that the preamble and recitals should be capable of being used in the interpretation, as they so often are. The question then becomes whether it is important and right to make reference to that specifically in the Act as it goes forward so that everybody, including the public, know that application of the recitals and preambles to these EU instruments is something that Parliament intends. Where I might part company a little with the way that Amendment 58 is drafted is in its apparently requiring that the interpretation should be in accordance with the recitals and preambles. The recitals and preambles should certainly be taken account of and proper regard should be given to them, but it is possible that requiring that they be interpreted in accordance with the preambles is going a little too far. No doubt the Minister will have something to say about that, as I hope he will have something to say about the principle.

The principle, which I support from these Benches, is that it should be clear, one way or another, that the recitals and preambles should be capable of being taken into account in interpretation because that is an important part of understanding that legislation. I have no doubt that the noble and learned Lord, Lord Mackay of Clashfern, is right that the process of transposition which is intended by Clause 1 does not involve excising the recitals and preambles. What will come in is everything that is in that which is defined as EU retained law at the moment, but that does not quite cover the point about whether there is a risk that somebody might think that they are not allowed to, or should not, take account of the recitals and preambles. Of course, that depends on what the judges say. That is the principle in relation to the first part of this group of amendments. I support the need to be clear that those recitals and preambles can be taken into account, but will listen very carefully to what the Minister has to say on that.

--- Later in debate ---

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

My Lords, first of all perhaps I may observe that, pursuant to Clause 3 of the Bill:

“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day”.


That brings over direct legislation, including recitals, as I believe a number of noble Lords have understood.

The Government’s position is that, as long as retained EU law remains as part of the UK statute book, it is essential that there is a common understanding of what the law means. Therefore, to maximise certainty, any question as to the meaning of retained EU law will be determined in the UK courts, in accordance with the CJEU’s case law as it exists immediately before the UK leaves the EU. That is set out in Clause 6(3). Any other starting point would lead to a change in the law and risk creating considerable uncertainty, if not confusion, on exit day.

However, we do not want to fossilise that case law. That is why, pursuant to Clauses 6(4) and 6(5) of the Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to depart from that situation when employing their own jurisprudence. The test would be that which they apply at the present time in departing from their domestic jurisprudence.

While it would be fair to say that the Constitution Committee has not always seen eye to eye with us on the Bill, on this particular issue it described the Government’s position as clear and sensible. Retained EU law will of course be modified after exit day by Parliament, and indeed by the devolved legislatures. It is right and sensible that it should no longer be interpreted in line with retained EU case law, following those modifications. But, in other cases, it may be appropriate that, even where there has been some modification, it should continue to be interpreted in that same way. What we have in mind is a situation in which a modification simply changes a reference, for example from an EU commission or agency to a UK public body, but leaves the substantive scheme of the retained EU law exactly as it was before. That is the purpose of Clause 6(6): to ensure that, where there is a modification that has no impact on the operation of the scheme, we should continue, pursuant to Clause 6(3), to amend in an appropriate fashion.

Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to unmodified law from Clause 6(3). But one effect of that would be to cast doubt on the operation of Clause 6(6) and the ability of modifications to retained EU law to displace the binding effect of pre-exit CJEU case law. That uncertainty, we suggest, should be avoided.

Can I come on to the issue of recitals?

[Lord Goldsmith]

I intervene on the Minister before he moves on to that topic. If the words that the noble Baroness’s amendment would remove—

“so far as that law is unmodified on or after exit day”—

remain in, would it still be the Government’s position that any part of an EU law can be interpreted in accordance with these principles, even if another part of that law has been modified? Could he explain precisely? Is it a question of looking at a law and saying that part of it has been modified, and therefore we no longer look at EU retained law to interpret what is left—or is it that, once it has been modified a bit, it means that it is no longer subject to that interpretative technique? It would be very helpful to have that clarification.

[Lord Keen of Elie]

I am not sure that I am entirely following the noble and learned Lord’s point. To express it this way, where after exit there is a modification to retained EU law but that modification does not go to the substance of the retained EU law, which would have to be addressed on a case-by-case basis, Clause 6(6) then allows for the continued interpretation of that retained EU law by reference to Clause 6(3), notwithstanding the relevant modification. That is why I sought to give the example of a modification that simply took out the reference to an EU agency and substituted a UK agency.

[Lord Goldsmith]

I hope that the noble and learned Lord and the Committee will permit me to intervene, because it is important to know how this is going to be interpreted. I do not see in these words anything about a proviso where the modification does or does not go to the substance of the directive. What my question had in mind was that, if you had a directive that has 10 provisions in it, for example, and if one of those was modified, or indeed nine of them, when it comes to the one provision that has not been modified, does one treat the proviso as applying or not applying? In other words, is that therefore modified retained EU law, which cannot be interpreted in accordance with retained case law?

[Lord Keen of Elie]

With respect, it could all be interpreted with reference to retained case law. Clause 6(6) says:

“Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after exit day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications”.


So the point is being made that, even where there has been modification post exit to retained EU law, you may still find yourself on a case-by-case basis deciding that you can construe that retained EU law, notwithstanding the modification, in accordance with Clause 6(3). If the noble and learned Lord wishes to discuss the matter in some detail later, I am quite happy to take him up on that.

[Lord Goldsmith]

That is why I did not stand up, because I think that it is better if we discuss it outside the Committee.

[Lord Keen of Elie]

So be it. And there was me thinking that I was being clear.

I shall touch on Amendments 58 and 59 as well as Amendment 60, which are really concerned with what is being brought over into retained EU law. I reiterate the point that I made earlier that, pursuant to Clause 3, we bring over into retained EU law all the recitals and other material in the EU regulations and directives for the purposes of interpretation and then application—a point made by my noble and learned friend Lord Mackay of Clashfern earlier. If I may say so, that is reinforced, although perhaps not quite as patently as some noble Lords would wish, by Clause 6(3), which refers to the requirement to address the matter in accordance with any retained case law and retained general principles of EU law. The retained case law includes a body of case law that is establishing and has established clearly the principle of interpretation by reference to the relevant recitals in the directives and regulations.

Indeed, as the noble and learned Lord, Lord Goldsmith, observed, when addressing the matter in the context of the ECJ, as it was, or the CJEU, one finds that these recitals sometimes play a very material part in the way in which they interpret and apply legislation that is drafted in a rather—if I may say so, without being pejorative—looser way than is perhaps the norm in domestic statutory provision.

European Union (Withdrawal) Bill

Lord Goldsmith Excerpts

2nd reading (Hansard - continued): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Lord Goldsmith (Lab)]

My Lords, we need a Bill to maintain within law the protections and the continuity that we have. The decision to leave the European Union having been made—whatever one thinks of it—the consequence will be that many laws on which we presently depend will fall away unless steps are taken to keep them in place. But that does not mean just any Bill. This legislation is so serious and so important—for ourselves, for our citizens, for our children—that we have to get it right, and getting a complicated and important piece of legislation right is one of the things that this House does particularly well. We need to make it fit for purpose, as my noble friend Lady Smith of Basildon said, or—in the rather more graphic terms of the noble Baroness, Lady Boothroyd—copper-bottomed, ironclad and storm-proof. She is absolutely right, because when the Bill becomes an Act it will have to withstand many storms from citizens hoping that it still delivers protections for their rights, and we must not disappoint them; and from lawyers, and I speak as one, hoping to thwart them or to provide even more.

I have never before heard a debate in which so many Lords from all parties and from none have criticised a Bill for its technical deficiencies, its assault on our constitution, its assault on parliamentary sovereignty, its extraordinary switch of power to Ministers, the jeopardy it creates to our devolution settlement and the legal uncertainty it creates, not to mention the risk it poses to the peace in Ireland and the Good Friday agreement. Whatever the differences on other matters—leave or remain, a second referendum or not—there seems to be a wide measure of agreement that the Bill, as it stands, does not do what is required to make it fit for purpose. Wanting to make it fit for purpose is not putting a spanner in the works. It is not frustrating the Bill or the people’s will. The noble Baroness, Lady Altmann, was right to make that point. So there will be many amendments that we will have to consider, such as dropping the word “appropriate” in many places for something much tighter. I hope the Government heard the powerful challenge to it from the noble Lord, Lord Wilson of Dinton—who as a former Cabinet Secretary and, indeed, Permanent Secretary of the most legislating department of all, the Home Office, knows a thing or two about legislation—and his comments on what Ministers might do and delegated powers. Indeed, I hope they heard the comments of the noble Lord, Lord Bichard, with his experience in local and central government.

It has been a privilege to hear so many excellent speeches and outstanding contributions, such as those from the noble Lords, Lord Higgins and Lord Patten of Barnes, and the noble Baroness, Lady Boothroyd, not to mention those from this side, such as the noble Lords, Lord Liddle and Lord Judd—as well as some unforgettable images, such as the gangplank into thin air of the noble Lord, Lord Bridges; the nervous maiden aunts of the noble Lord, Lord Lisvane, settling down to a Quentin Tarantino movie; or the rather worrying image conjured up by the noble Lord, Lord Cormack, of somebody—and I am not quite sure how many people—getting into a bath to sing. But to make this Bill fit for purpose requires in my mind at least three objectives: to make sure there is legal certainty after the Bill is passed; to ensure that protections for the people, workers and women of this country, and everyone else, are not diminished—I pay tribute here to my noble friend Lady Crawley for rightly pointing out how European law has protected women; and, thirdly, to do so in a way which maintains the critical elements of our constitution, including devolution and, above all, the sovereignty of Parliament.

The damage this Bill will do to our constitution, if not significantly amended, has been powerfully described by a number of noble Lords and in the brilliant report of our Constitution Committee. They are right to say that this Bill, as it stands, is constitutionally unacceptable, including the largest transfer of power, as the noble Lord, Lord Lisvane, said. They are right to say that it risks undermining legal certainty in a number of ways.

I want to say, in the short time I have, a word or two about the European Charter of Fundamental Rights. I declare an interest in that I was, as many Members of the House will know, the representative of the Prime Minister—in fact, the United Kingdom Government representative—in the negotiation of the charter, so I had a very close involvement in its drafting. A number of other Members of your Lordships’ House were also involved. The noble Lord, Lord Bowness, was a representative of the House with my noble friend Lady Howells of St Davids as his alternate. The noble Lord, Lord Kirkhope, was a Member of the European Parliament delegation, while the noble Lord, Lord Chidgey, was at the time an alternate Member representing the House of Commons. I mention those noble Lords not to share with them any of the criticisms that have been made of the charter, but to illustrate something that is not often recalled about it. It was drawn up by a wide body representing Parliaments, the European Union institutions and Governments.

I need also to declare that I have spoken and written many times on the charter because of my close involvement with its drafting. I have no doubt that during the coming debates, some of what I said or have written will be pushed back to me, because it is the case that we in the United Kingdom were anxious to avoid confusion with other rights, in particular the European Convention on Human Rights, and so emphasised the limited role of the charter. But that was then and a lot has happened since. The charter has been relied on in national and supranational courts, it has been talked about a great deal, and in Committee we will have to look at some of this. We need to remember that the rights in the charter do not derive only from the ECHR, as is sometimes thought, but from a number of sources, including EU law as well as general principles of law which have no other individual legislative base. It also adds important remedies which do not otherwise exist.

That brings me to a point made by a number of noble Lords, including the noble Baroness, Lady D’Souza, my noble friends Lady Whitaker and Lady Blackstone, and by the noble Lord, Lord Warner. Why are the Government so determined that the one element of protection that will not be kept in place after the Bill has been passed is the Charter of Fundamental Rights? They say that there is no need because all the rights are protected in any event. If that is so, what is the harm in keeping it in place? If it is not the case and removing the charter will come, as many people believe, to diminish the protections they currently have, that would be a bad turn. In fact there are a number of good reasons why we need to keep the charter—reasons enumerated by, for example, the Joint Committee on Human Rights in the commentary in its report, Legislative Scrutiny: The EU (Withdrawal) Bill: A Right by Right Analysis. I respectfully commend that to noble Lords. Six powerful reasons are given why we need to keep the charter.

According to the Guardian, one of the new Brexit Ministers, Suella Fernandes, has said that exiting the EU Charter of Fundamental Rights would “avoid” extra protections. If that is what is happening, that is not maintaining the protections which currently exist in this country. Even if it were right that the protections add nothing, why remove them? It will mean that the rights in the charter from which we and our fellow citizens should benefit will be less accessible and less visible. That is because making rights visible and accessible was one of the key purposes of the charter. It would be mean-spirited to remove it. To make a change in this Bill to reduce the visibility and accessibility of rights, even if eventually they can all be found somewhere else is—I say it again—mean-spirited. Having and celebrating rights, not hiding them but being proud of them, is the mark of a good, decent culture. That is the sort of culture and country in which I want my children and grandchildren to grow up.