European Union (Withdrawal) Bill

Lord Mackay of Clashfern Excerpts

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

[Lord Mackay of Clashfern (Con)]

My Lords, it is a privilege to follow the noble Lord, Lord Hannay. He and I co-operated as closely as we could on the original attempt to keep us in the European Union. Today, however, we are faced with leaving the European Union and I make no comment on that except to accept it as a fact and to refrain from any prophecy as to what will happen next.

The Constitution Committee of this House has done a very good job, and most of the amendments it proposed would improve the Bill. I just want to mention one or two general points raised by these amendments. The Bill is to bring into the United Kingdom’s statute book legislation passed by Europe but not presently on the statute book. It also provides that this legislation would have priority or supremacy over UK legislation in the same area. This problem is one that the Constitution Committee has solved with great elegance. First, it has said that the direct EU legislation should be treated as primary legislation; that is, as legislation passed by Parliament not under the authority of Parliament. Secondly, it should be deemed to have a date of our leaving date. Because of our system, that will automatically give it priority over any Act with which it conflicts and which preceded it. I regard this as an extremely clever—indeed, wise—suggestion for dealing with this matter. The Government had thought to have a case-by-case decision about this, but I think this is much better and I commend it to the Government strongly.

The second point relates to the jurisdiction of the European Court of Justice and to references by our courts to that court. The idea of the statutory reference is being swept away, but that still leaves the question of whether our courts should have regard to decisions of the European court. My experience, such as it is, of this is that our courts are free to look at any court decision they want—from Australia, New Zealand, Canada, the United States, or even Scotland. They are absolutely free to do that. Originally, I was therefore rather minded that this should continue as far as the European Court of Justice is concerned. If something helpful was said in that court, there is no reason why our courts should not take that into account. The noble and learned Lord, Lord Neuberger, as President of the Supreme Court, pointed out that such was the political heat of that sort of suggestion, it would be very unwise to subject judges to that kind of conflict. Therefore, it would be right for Parliament to take responsibility for saying when they could refer to the European Court of Justice. The Constitution Committee has recommended a very sensible way of dealing with that: where a court here, considering a piece of pre-Brexit legislation from Europe, finds that the European Court of Justice has later made a decision relevant to that sort of case, it is entitled to turn to it.

My final point relates to the devolution settlement. I regard this as absolutely fundamental but also as extremely difficult, because there are various levels of power in Europe that may be in, for example, the area of fisheries. First of all, there are international powers in relation to that. Our current international relationships in relation to fisheries are with the European Union. If that power is returned here, it should belong to the state of the United Kingdom. On the other hand, detailed provisions about what happens to fisheries are made at a more local level, under the present devolution settlement. Therefore, there is a problem with how this should be done, which I regard as very much a matter for negotiation between the Government of the United Kingdom and the Governments—where they exist—of the devolved Administrations. I very strongly support the view that it would be most unfortunate if Northern Ireland continued without an Administration. I hope that will not continue and that the new Secretary of State—I am saddened by the health difficulties of the former Secretary of State for Northern Ireland—will, perhaps with the Prime Minister’s help, be able to restore the Administration. Anyhow, it is a matter for negotiation between the devolved legislatures—the Ministers of the devolved Governments —and the Government of the United Kingdom. I certainly hope and believe that the best solution to the Clause 11 amendment is for the Government to come forward with an amendment agreed by those parties. I have great confidence that they all seek a solution to what I regard as a very difficult problem. I hope they will succeed. If they do, I am sure it will be with the greatest pleasure that we will give effect to that agreement.

The last point I want to make—just after the last one, as it were—is that the European Charter of Fundamental Rights is a big subject. The noble and learned Lord, Lord Goldsmith, said a good deal about that. I will not take time on it now, since my time is up anyway.