European Union (Withdrawal) Bill

Lord Beecham Excerpts

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

[Lord Beecham (Lab)]

My Lords, your Lordships may have noticed that I am rather short: this afternoon, I can give the House some comfort by saying that, in relation to this amendment at least, I shall also be brief.

The Constitution Committee points out that Clause 2 is not needed to ensure that most categories of domestic legislation—which in practice will remain in force—will continue to apply. It concludes that,

“clause 2 appears to be significantly broader than it needs to be”.

The Constitution Committee affirms that it is not constitutionally necessary or appropriate for primary legislation, which will continue in force in any event, to be treated as retained EU law and be subject to the powers of the amendment referred to in Clause 7.

Does the Minister accept this? If not, on what basis does he take that stance? The provision appears to be a way of allowing the Government to amend legislation by the mechanism of secondary legislation. With all the concerns around the excessive use of such procedures that have frequently been expressed by committees of the House and by Members in the Chamber, it would be reassuring if the noble and learned Lord could make it clear that that is not the Government’s intention in respect of this Bill.

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

My Lords, I am grateful for the contributions from Members of the House with regard to this issue. We are extremely grateful for the extensive work done by the Constitution Committee with regard to the Bill, as set out in the report, and for the consideration that members of the committee have given to the provisions of the Bill and some of the difficult issues that arise in transposing EU-based legislation into domestic law, because it represents something of a challenge in a number of respects.

I shall begin by referring to a matter that does not arise out of this group, or did not until the noble Lord, Lord Adonis, raised it, because it may help if I address his point about whether retained EU law is primary or secondary legislation. It is neither in the Bill. There are provisions in paragraph 19 of Schedule 8 with regard to the Human Rights Act, which is a very particular case, where it will be treated as primary legislation. There is the Constitution Committee’s recommendation that it should all be treated as primary legislation. I shall not go into detail at this stage because we will address this later, but I want to reassure the noble Lord about where we are.

That recommendation raises enormous difficulties because there are aspects of EU-derived legislation that, for example, involve the enumeration of the contents of a particular dye or chemical, and the idea that we could amend that only by way of primary legislation raises issues of its own. Nevertheless, it seems to the Government that there is some scope for considering how we can take this forward, and we are open to considering not only the recommendations of the Constitution Committee but of others. For those who have an interest in this issue, I commend for consideration, at least, the recent observations of Professor Paul Craig of St John’s College, Oxford, in a blog on the UK Constitutional Law Association site dated 26 February—only a few days ago—in which, supplementary to an earlier note that he made, he proposes a categorisation of EU-derived legislation. I cannot say that it is one that we entirely agree with, but it is certainly one that we are looking at because there is more than one route to the resolution of this issue. We are looking at that and, for noble Lords who are interested in that point, it may be worth considering.

European Union (Withdrawal) Bill

Lord Beecham Excerpts

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

[The Duke of Montrose]

My Lords, the reason I dare to intervene at all is that I have always had a great interest in conservation, as a farmer, and in looking after nature reserves and various such things. Will the Minister make something clear? It seems to me that the habitats directive and the water directives are already part of our law; I do not quite see how they would fall through in the absence of some of these clauses, but we do want to tighten up the legislation.

[Lord Beecham (Lab)]

My Lords, I start by affirming that we on these Benches—or what is left of us—support the thrust of Amendments 26 and 28, which deal with significant issues raised in Clause 4. As the Constitution Committee avers, as drafted,

“Clause 4 will … domesticate all directly effective treaty provisions, whether or not they will be capable of meaningful application”.


What is the point of such an outcome? What is the point of creating a situation under which in the case of domesticated provisions which have,

“no practical application, or makes provision for reciprocal arrangements or rights which no longer exist or are no longer appropriate once the UK has left the EU, statutory instruments can be brought forward to repeal or amend the provisions”?

More substantively, what is the Government’s response to the damning conclusions of the committee in paragraphs 37 and 38 of its report? These describe the implications of the Bill for reciprocal rights as “uncertain” and state:

“The full impact of Brexit on reciprocal rights will not be known until the UK’s future relationship with the EU is determined”.


What is the Government’s position on this issue?

Given the concerns of the committee, what, if any, estimate have the Government made of the consequences of the Bill’s impact in this area, and what is their response to the committee’s observation that:

“The ambiguities in the interpretation and effect of clause 4 will inevitably cause legal uncertainty about a fundamental provision of the Bill. This will undermine one of the Government’s main objectives in bringing forward this Bill”?


The committee concludes its observations on this part of the Bill by stating starkly:

“The ambiguities need to be resolved”.


Does the Minister agree that there are ambiguities? If so, how and when will the Government address the problem?

[Baroness Goldie]

My Lords, I rise to respond to these amendments with one very clear thought in my mind: I wish my noble and learned friend Lord Keen were standing at this Dispatch Box. We are dealing with issues that are clearly perplexing much greater intellects than mine, but I shall do my best. These amendments, tabled by the noble Lords, Lord Krebs and Lord Pannick, concern the operation of Clause 4 and I am grateful for the opportunity to further explain and discuss the Bill’s approach to directly effective provisions arising from EU directives, one of the issues raised by these amendments.

As the Committee is aware, one part of EU law that the Bill is not converting into our domestic law is EU directives. The reason for this is clear: as they are not a part of our domestic law now, they should not be after we leave the EU. Indeed, my noble and learned friend Lord Mackay of Clashfern made this point very succinctly in the earlier debate. Instead, the Bill is saving the domestic measures that implement the directives under Clause 2, so it is not necessary to convert the directives themselves. My noble and learned friend Lord Keen clarified that in the earlier debate. 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 and it makes no sense to retain the direct effect of this category of law within our domestic law.

However, the Bill recognises one important exception to this approach: where, in a case decided or commenced before exit day, a domestic or European court 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 provide for that right, power, et cetera, to continue to have effect in domestic law.

The debate seemed to centre around the nub of phrasing in Clause 4(2)(b). In the earlier debate the noble Baroness, Lady Ludford, raised the interesting question of what “kind” means in the phrase “of a kind”. That question was repeated by the noble Lord, Lord Pannick. In Clause 4(2)(b) “of a kind” is to be read in the context of a right recognised in a decided case. Rights recognised in particular cases are often described in specific terms particular to that case and to the individual who has brought the action. The phrase “of a kind” is designed to ensure that comparable rights particular to other cases and individuals are also retained by Clause 4 but in respect only of decisions pertaining to that same directive. It is the opinion of the Government that this 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 in our statute book about what will be retained in UK law at the point of exit. The noble and learned Lord, Lord Brown of Eaton-under-Heywood, encapsulated that point very neatly.

The amendment of the noble Lord, Lord Krebs, which is similar to the one tabled by Lord Pannick, would instead remove this balance. These amendments could have the effect that pre-exit directives would give rise to a directly effective right that has not previously been identified, for an unspecified period after our exit. Such rights would therefore become part of our law. The Government have always conscientiously implemented EU legislation, in accordance with our obligations as a member state, but once we are no longer in the EU, we should have no enduring obligations in relation to the implementation of EU directives. To accept these amendments would be to undermine the certainty that this Bill seeks to achieve. Businesses and individuals will be placed in the difficult position of not knowing when their rights might change, and our courts could face practical difficulties.

The amendment of the noble Lord, Lord Krebs, goes even further. It would place Ministers under a continuing duty and obligation to make regulations where there has been incorrect implementation of any of the EU law that is retained through Clause 4. I would argue that this provision is harmful for several reasons, and it would not be consistent with the principle that we are separating our domestic statute book from that of the EU.

First, binding Ministers to legislate to give effect to any incomplete or incorrect directly effective EU law retained through Clause 4 would effectively require the UK to act on obligations of implementation relative to the EU framework that it was no longer under—a situation that would be simply inappropriate following exit day. Such an approach would impact on the certainty that the Bill aims to provide in our domestic statute book. By potentially allowing developments in the EU to continue to flow into UK law past the point of exit day, the clear snapshot—I know some Members do not care for the term but I think it is the best term we can come up with—taken by the Bill will be distorted, giving rise to confusion about what our law actually is and where it comes from.

--- Later in debate ---

[Lord Pannick]

My Lords, this is another amendment that comes from the Constitution Committee. It suggests that we should exclude from the scope of Clause 4 any EU law rights derived from the 1972 Act which are already the subject of an enactment—in other words, where Parliament has already dealt with the subject. The Constitution Committee explained its concern at paragraph 35 of its report.

The concern is this. Clause 4 as drafted would include, within retained EU law, rights and obligations under EU law irrespective of whether they have already been implemented in domestic law by primary or secondary legislation. The problem to which this gives rise is that, as a result of Clause 4, there may be, as part of our law after exit day, two conflicting sets of legal rights on the same subject: the ones already implemented by Parliament and the greater rights which a litigant will say are derived from retained EU law. The question is: how is the court supposed to deal with that conflict? It has two retained EU law rights on the same subject. The Constitution Committee heard evidence from the noble and learned Lord, Lord Neuberger of Abbotsbury, the former President of the Supreme Court. As set out in the report, he told the committee that this problem needs to be addressed by the Bill.

Paragraph 36 of the report mentions that the committee heard evidence from the Department for Exiting the European Union that suggested that the problem that I have sought to explain is no different from the situation under the current law where there may be a statute which has sought to implement an EU law obligation that is found by a court judgment not fully to have implemented the EU law obligation, so the EU law obligation takes priority over the inadequate domestic implementation. The problem is that under the Bill, both the domestic enactment and the EU law obligation —see Clauses 2 and 4 respectively—are treated as retained EU law, so the supremacy principle under Clause 5, to which we will come, applies to both of them, and the question remains: which of them takes priority? I look forward to hearing the answer from the Minister to this difficulty. I beg to move.

[Lord Beecham]

My Lords, at this late hour, I am more than content to rely on the amendment moved by the noble Lord, Lord Pannick, and the questions he has raised.

[Baroness Goldie]

My Lords, this will be brief, because my soulmate and prop has deserted me. With this amendment, the noble Lord, Lord Pannick, has raised what he sees as the potential conflict between the EU law retained under Clause 4 and the domestic legislation preserved under Clause 2. His amendment seeks to ensure that rights, powers, obligations et cetera provided for in EU directives which have been implemented into EU-derived domestic law—and therefore are already subject to an enactment—will not need to have their directly effective provisions domesticated through Clause 4.

The Government consider this amendment unnecessary. To the extent that there is any potential overlap between Clause 4 and Clause 2, this is no different from the situation at present in relation to EU law and how we see it given effect in UK law. A judgment may establish direct effect, and domestic legislation to implement that finding may follow. But this does not cause any practical difficulties now—indeed one process complements the other—so we simply do not agree that there will be practical difficulties under this Bill as phrased.

I am of course grateful for the suggestion made by the noble Lord, Lord Pannick, but the Bill’s position is clear and consistent with existing practice, and his amendment is unnecessary. In these circumstances, I ask him to withdraw it.

European Union (Withdrawal) Bill

Lord Beecham Excerpts

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

I hope that the noble and learned Lord who is to respond—if I have correctly identified who is to speak this time—will be able to say that the Government accept that it is right to make amendments in this way. Whether he is able to accept quite what the formulation would be is another matter, but he may wish to consider, between now and Report, whether discussions should take place to arrive at a formulation that those in the House who are concerned about this issue find to be a happy and helpful way of setting it out. That is for him to say. I would suggest that that would be most helpful, but in the meantime, I hope that on this occasion he will be able to say that in the light of what has been said about the importance of the principles of legal certainty and doing everything we can to uphold the independence of our judges, upon which principle we all depend, the Government accept it and will do something to make it right.

[Lord Beecham (Lab)]

Does my noble and learned friend agree that, in all fairness, the noble and learned Lord, Lord Keen, distinctly and clearly criticised those attacking the judiciary at the time that my noble and learned friend mentioned?

[Lord Goldsmith]

I am grateful for that unexpected intervention from my own Front Bench, but I am happy to take the opportunity to say that the noble and learned Lord, Lord Keen, was one of the few to say the right thing and uphold the independence of the judiciary at the time of that attack. I am grateful to my noble friend Lord Beecham for making the point because it deserves to be made.

European Union (Withdrawal) Bill

Lord Beecham Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Lord Adonis]

My Lords, the noble Lord, Lord Shipley, drew attention to a significant weakness in our constitutional arrangements. The paradox of devolution as it has developed in recent decades in respect of Scotland and Wales—and Northern Ireland, to some extent, although it has a more complicated history—is that the greater the degree of formal statutory devolution, the greater the degree of formal statutory consultation with central government.

As these debates have unfolded in the interminable Committee, which I now think of almost as the committee for public safety on the Bill and which we have held over many weeks, I am struck by the fact that we have devoted huge amounts of time to arrangements with Scotland, Wales and Northern Ireland. They have a population of 10 million between them; England has a population of 53 million and we have spent almost no time on it—indeed, I think this is the first substantive debate we have had, in a very thin Committee at 8 o’clock in the evening, on the arrangements for consulting and liaising with England on devolution. That goes to the heart of the big problem in our constitutional arrangements, which is that sub-national government in England has no formal relationship in terms of statutory bodies or arrangements with central government and is largely ignored. I hope that the Minister, who is very reasonable, will at least reflect on the fact that the responsible leaders of English local authorities who are in the House this evening—including the noble Lord, Lord Porter, on his side—appear to have more confidence in the consultative machinery in place in the European Union than in central government here in London. That is quite a telling sign.

The bit of English government that I have had most contact with in recent years, as a Minister and politician, is the government of London. The single most significant and positive change made by the British state, in respect of the government of England in the last 20 years, was establishing a Mayor of London with substantial powers and a real degree of autonomy. When I was sitting on the Benches opposite as a Minister, I can say that you took the call of the Mayor of London; he is elected by a million votes and has statutory responsibilities. For other local authority leaders in England, with little formal status—nothing like the clout of the Mayor of London—and no formal machinery in place, it is very hit and miss whether their voice is heard at all in London.

The paradox of the Brexit vote is that the areas that are the least consulted and engaged with by central government in England—which, to be blunt, is most of England outside the south-east—are also the areas that voted most heavily for Brexit. There is a big and fundamental commentary there on the state of the government of England: whether we complete Brexit next year or not, the substantial unfinished business of constitutional reform in Britain over the coming years will be the government of England outside London. That is not something we will determine at 8 o’clock in the evening in debate on amendments to the EU withdrawal Bill, but it is quite clear that the whole EU withdrawal process has set in train a set of concerns that will be very difficult not to address.

I want to make one final comment so that we can put the entire constitution on the agenda in one short debate. I suspect that the future of the House of Lords will have a part to play, because if we have proper devolved arrangements for the regions or cities of England—however we choose to provide better government for England—we will have something that starts to resemble a genuine, balanced federation in the United Kingdom. Once we have that, the obvious and logical successor to this rather toothless and nominated House of Lords would be a proper federal second Chamber. Who knows? If we can envisage withdrawing from the European Union, we can certainly envisage having a federal second Chamber of the United Kingdom in our lifetimes.

[Lord Beecham (Lab)]

My Lords, I refer to my interests in the register as a vice-president of the Local Government Association and a councillor in Newcastle.

Of course, it is understood that the north-east will be the region most adversely affected by the departure from the EU that Brexit will bring about. It is ironic really that the population in the north-east is greater than that of Northern Ireland. Of course Northern Ireland has its own history and problems, but it has not been overlooked in the north-east that in cash terms the offer made to the North of Tyne Combined Authority amounted, over 30 years, to less than half the amount recently secured by the DUP as a condition of supporting the Government. We feel somewhat underfunded compared to other places. Not to be included in any of the discussions that will take place—and are currently taking place—rubs salt in more than somewhat.

--- Later in debate ---

[Lord Bourne of Aberystwyth]

Certainly, it is, but before we cause great confusion on the part of anybody tuning in now and thinking that they have tuned into Cardiff Bay, I think all noble Lords will realise the dangers of us going down that path. Suffice it to say that it is wise in the light of that not to be led down the path of discussing a federal second Chamber, although there are certainly issues worthy of broader consideration on another occasion. However, I appreciate some of the points being made.

I am pleased to note that the noble Lord, Lord Beecham, is recovering from his injury and that it is not more serious than it looks.

[Lord Beecham]

I am grateful to the Minister for that. I should make it quite clear that it is not damage inflicted by Brexiteers.

[Lord Bourne of Aberystwyth]

I am not sure that the noble Lord is absolutely certain of that, because it seemed to be a Tube driver who caused the accident. Anyway, I am pleased that it is not a serious injury.

The noble Lord talked about the particular issues in the north-east in relation to government offices and so on. Again, I think it wise to leave the matter for the new arrangements, but I take the point about the great regional interest of the north-east. It is worth mentioning in passing that there was an opportunity under the previous Labour Government which was turned down pretty heartily, but circumstances change and it does not mean that there are not regional interests that need looking after.

We have had a fascinating and wide-ranging discussion. As I have indicated, I am very sympathetic to the aim of what is being sought, but it should not be on a statutory basis. We will follow up with a ministerial Statement. The Minister for Local Government will proceed shortly to discuss this matter with Local Government Association representatives cognisant of the fact that interests in Scotland, Wales and Northern Ireland will need protecting. I understand the concerns. In light of these assurances, and with the undertaking that I will update the House on Report, I urge the noble Lord to withdraw his amendment.