European Union (Withdrawal) Bill

Debate between Viscount Hailsham and Baroness Bowles of Berkhamsted

Committee: 11th sitting (Hansard): House of Lords
Wednesday 28th March 2018 Lords Chamber

[Baroness Bowles of Berkhamsted (LD)]

My Lords, my amendment would add EU directives to the list of relevant instruments that the Queen’s printer must make arrangements to publish. I briefly flagged the point of the amendment when we debated recitals with regard to interpretation and Clause 6(3) on 7 March. Anyhow, in those previous exchanges, and since, in the letter of 13 March from the Solicitor-General to Robert Neill MP, it has been confirmed that recitals have an ongoing role in interpretation of retained EU law. There are several interesting points in the letter and footnotes, but for the benefit of the House I will read out just a small part, which says:

“For example, the Treaty base of EU legislation, its recitals, and the working papers prepared in advance of its adoption, may all be referred to at the moment. Our courts are well-versed in this, and in dealing with the differences that exist between the interpretation of domestic law and EU law. As such clause 6(3) of the Bill should not disturb the existing approach taken by our courts”.


I still have an ongoing concern that I raised regarding post-Brexit loss rights of challenge in court, and on which I have written to the noble and learned Lord, Lord Keen, but from the interpretation point of view it is clear that recitals and other parts of directives are available for interpretation. On that basis it seems to me that directives are not just any old other EU instrument; they should have a rank prescribed in the Bill and not left to the possible halfway house of it being done at the discretion of the Queen’s printer or for there to be special rules about their admissibility.

Recitals and indeed whole directive texts and their empowerments will not only be a last resort to reference by the court; it is quite likely that, post Brexit, a lot more notice will be taken of them than previously, especially in those areas where any kind of regulatory alignment is sought. I understand from a ministerial meeting that the Treasury is certainly thinking that way.

What happens if there is no automatic publication by the Queen’s printer? As I said, it could be that the Queen’s printer does it under paragraph 1(3) of Schedule 5, but that is not certain, or under part 2 on rules of evidence in Schedule 5, and in particular paragraph 4, where it would be necessary for there to be regulations to enable documents that were not published by the Queen’s printer to be admissible, and they would have conditions around them. It may just be for certification, of course, but that does not reflect the status of this important category of EU instruments from which a great deal of retained EU law derives.

Directives need to be added to the list of relevant instruments, as I suggest in my amendment, or some other provision should be made in Schedule 5 for this important category of documents. If there is a need to make exceptions to publishing some directives or parts of them, those powers exist in paragraph 2, and I agree with the amendment in the next group that it should require regulation to make that exception, but directives should be of a category that is in unless taken out, rather than out but can be opted in. I beg to move.

[Viscount Hailsham (Con)]

My Lords, there seems to be a great deal of sense in the amendment, partly because of the provisions of Clause 6, and partly because it is important that the businesses that will be trading into the European Union have ready access to all relevant documents. They will be regulated by directives which set out the principles with which they must comply. The noble Baroness is quite right to move the amendment. Unless there is some compelling reason—which cannot be cost, because that must be very small—I hope it will get a favourable reception from my noble friend.

--- Later in debate ---

[Baroness Bowles of Berkhamsted]

My Lords, I will speak to the amendment in my name, in case other noble Lords want to come in on it. It relates to Part 2 of Schedule 5, on the rules of evidence. It is about regulations again, but in a different part of the schedule. I am sensitive to powers that potentially change what may or may not be available as evidence. This is a constitutional point, especially if it means disappearing cases or defences. I therefore find the provision in paragraph 4(3) of Schedule 5 too wide. It permits regulations under paragraph 4 to modify any provision made by or under any enactment made up to the end of the Session in which this withdrawal Bill is passed. That is basically all legislation until then.

I have tried to work out why this provision is needed and what it could do if abused, for that is the standard that we must measure against. In many discussions on wide powers, Ministers have protested good faith. Many of your Lordships have not doubted them but have still wanted safeguards, while others of your Lordships, including distinguished privy counsellors on the government side, have warned—or maybe confessed—that Ministers will abuse powers and have likewise suggested safeguards. This is all part of the “appropriate” versus “necessary” argument.

I was struck last Wednesday that, when the boot was on the other foot, the Government were less keen on having to rely on trust. About devolution, the noble and learned Lord, Lord Keen, said:

“If we look to the issue of consent, rather than consultation, let us be clear that it is not a question of trust but of constitutional propriety”.—[Official Report, 21/3/18; col. 403.]


I accept that the context is different, but the point that many of us have been trying to make about many powers in the Bill is just that: it is a matter of constitutional propriety between the Executive and Parliament and, indeed, the freedoms of the people.

Here we have another such power, even if it is small. It does not seem right that rules of evidence for admissibility could be changed, maybe quite widely, by amending any Act of Parliament, not necessarily limited to the consequences of Brexit. I have suggested adding a limitation, which would not allow use of the power for reducing the scope of what is admissible except for the purpose of replacing EU references with domestic ones. I thought that limitation was additionally relevant because the power to amend all pre-Brexit legislation seems to be perpetual. I was first inclined just to delete it, but I hope that my amendment will give the Minister an opportunity to clarify the kind of circumstances that are envisaged for the power, why it should be perpetual and whether some limitation could be envisaged to address my concerns.

[Viscount Hailsham]

My Lords, I have a brief observation on Amendment 355. I agree entirely with the points of principle that have been articulated by my noble friend Lord Cormack, by the noble and learned Lord, Lord Judge, and by the noble Lord, Lord Tyler. Let me make a practical point. If the Minister makes an exception and gets it wrong, people dealing with the European Union may find themselves non-compliant with regulations that are in force and thereby exposed to some form of penalty or disadvantage. The advantage of the amendment is that it would reduce that possibility by a small degree. It is worth guarding against the risk if we can.