European Union (Withdrawal) Bill

Lord Norton of Louth Excerpts

Tuesday 30th January 2018 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, it is crucial that we do not make the mistake that we made during the passage of the European Union Referendum Bill—that is, spend time debating the merits or otherwise of withdrawing from the European Union at the expense of focusing on the specifics of the Bill. We took our eye off the ball in dealing with that Bill, and we are in no position to complain about the rules and process of the 2016 referendum.

We need to be clear as to purpose. I endorse what the noble and learned Lord, Lord Hope of Craighead, said this afternoon. We cease to be a member of the European Union on 29 March next year whether or not we pass this measure. This Bill is necessary, although not sufficient. I have no problem with the end; we need to make sure that the means are there to ensure that it delivers what it is designed to do. As it stands, it goes much of the way to achieving it—some provisions are to be welcomed—but more needs to be done.

I serve on the Constitution Committee of your Lordships’ House. As the noble Baroness, Lady Taylor of Bolton, has already explained, our report, to which several noble Lords have already referred, identifies the key problems with the Bill and what can be done—indeed, what needs to be done—to render it constitutionally acceptable.

The Bill creates confusion for the courts and indeed is constitutionally flawed in the breadth given to the novel category of “retained EU law”. The category includes primary legislation that, by virtue of inclusion, becomes subject to the power of amendment in Clause 7. Even if primary legislation is excluded, the powers conferred by Clause 7 privilege Ministers to an unacceptable degree.

The power to make changes as Ministers deem “appropriate” is subjective and inappropriate. It is also inappropriate for the Henry VIII provisions in the Bill to be exercisable by the negative resolution procedure. The limited set of circumstances for which affirmative resolutions are required is too narrowly drawn. The power conferred on Ministers under Clause 17 has, in the context of the Bill, the capacity for broader application than is the case with other measures and, as we note in our report, there are minimal restrictions on the use of that power.

The “supremacy principle” that the Bill seeks to retain is imprecise in terms of scope. As the committee’s report stresses, it constitutes a fundamental flaw at the heart of the Bill and is alien to the UK constitutional system. In the words of the report:

“It has meaning and application only in relation to EU law, and to seek to graft that EU law principle onto a legislative scheme whose explicit purpose is to remove EU law from the UK legal system and replace it with domestic law risks confusion and places legal certainty in jeopardy. It does not make sense, either as a matter of language or as a matter of constitutional principle”.


What, then, do we propose? Retained direct EU law should be designated as domestic primary legislation. That would remove the need for a supremacy principle. We consider that there is merit in drawing on recent amendments made by the Government to the Sanctions and Anti-Money Laundering Bill to ensure that Ministers demonstrate that there are “good reasons” for any change and show that the use of the power is a “reasonable course of action”. We also recommend that the Explanatory Memorandum should include confirmation by the Minister that regulations do no more than make technical changes to retained EU law in order for it to work following our departure from the EU and that no policy decisions are being made. The consequential provisions power in Clause 17 should be removed.

We make other proposals, not least in relation to devolution. In essence, the Bill needs to be amended to strengthen the position of Parliament, to provide certainty for the courts and to meet the concerns of the devolved Administrations. We simply cannot afford to get this wrong. Those who have argued against Brexit today are not necessarily doing their cause or this House any favours. They are diverting us from our core task—the task that alone now falls to us: to scrutinise thoroughly and forensically the provisions of this Bill. We must not allow ourselves to be diverted.

I look forward to my noble friend Lord Callanan indicating willingness on the part of the Government to move forward on the amendments proposed in the report of the Constitution Committee. This time, we must not take our eye off the ball.