Vol. 789 Wednesday No. 106 7 March 2018
PARLIAMENTARYDEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT
ORDEROFBUSINESS
European Union (Withdrawal) Bill Committee (5th Day) ...... 1055 Questions Housing: Holiday Lets...... 1104 Schools: Music...... 1107 Nurses: Training ...... 1110 Emergency Hospital Admissions ...... 1112 European Union (Withdrawal) Bill Committee (5th Day) (Continued)...... 1115 Saudi Arabia Statement...... 1170 Leveson Part 2: Sunday Times Statement...... 1174 European Union (Withdrawal) Bill Committee (5th Day) (Continued) ...... 1178 Lords wishing to be supplied with these Daily Reports should give notice to this effect to the Printed Paper Office. No proofs of Daily Reports are provided. Corrections for the bound volume which Lords wish to suggest to the report of their speeches should be clearly indicated in a copy of the Daily Report, which, with the column numbers concerned shown on the front cover, should be sent to the Editor of Debates, House of Lords, within 14 days of the date of the Daily Report. This issue of the Official Report is also available on the Internet at https://hansard.parliament.uk/lords/2018-03-07
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House of Lords put their name to should be incorporated into the Bill, and I have helpfully provided an amendment to enable Wednesday 7 March 2018 them to do that. I also draw the Minister’s attention to the draft 11 am withdrawal agreement presented on 28 February by Michel Barnier to the Brexit Steering Group. I refer specifically to Article 83, which states: Prayers—read by the Lord Bishop of Rochester. “Where in a case before a court or tribunal in the United Kingdom a question is raised concerning the interpretation of the Treaties or the validity or interpretation of acts of the institutions, European Union (Withdrawal) Bill bodies, offices or agencies of the Union relating to facts that occurred before the end of the transition period and where that Committee (5th Day) court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, it may request 11.06 am the Court of Justice of the European Union to give a preliminary ruling on that question in accordance with the procedural requirements Relevant documents: 12th Report from the Delegated laid down in Article 267 TFEU. The Court of Justice of the Powers Committee, 9th Report from the Constitution European Union shall have jurisdiction to give preliminary rulings Committee on such requests”. Do Her Majesty’s Government agree to that proposal by Monsieur Barnier in the draft withdrawal agreement Clause 6: Interpretation of retained EU law and do they plan to amend the Bill accordingly?
Lord Forsyth of Drumlean (Con): How would the Amendment 49 noble Lord’s proposed new provision work in the Moved by Lord Foulkes of Cumnock event of there being no agreement and is he not anticipating the terms of an agreement? 49: Clause 6, page 3, line 33, after “cannot” insert “, subject to paragraph (c),” Lord Foulkes of Cumnock: As I understand it, all that we include depends on there being an agreement. Lord Foulkes of Cumnock (Lab): My Lords, in moving It is not just my amendment; it is the whole legislation. Amendment 49 I shall speak also to Amendment 52. I beg to move. I read the other day that the two most disbelieved statements are, “The cheque is in the post” and, “I am Lord Liddle (Lab): My Lords, I fully support my from the Government and I am here to help you”. noble friend’s decision to raise these questions, which Here is another one: this amendment is designed to be are very important. I suspect the Minister will say that helpful to the Government, and I hope they will the Government have given a commitment that, when genuinely believe that. It seeks to formalise the agreement the withdrawal agreement is concluded, it will become reached in December 2017 in the UK/EU joint report before this House an Act of Parliament and we will in relation to EU citizens and their ability to refer therefore have the opportunity to debate it then. However, cases to the CJEU. there are two powerful reasons why citizens’ rights Clause 6(1)(b) states that, “A court or tribunal”, should be incorporated in this Bill now. “cannot refer any matter to the European Court on or after exit The first is the high level of anxiety that EU citizens day”. have about their position. I am sure there is relief that, However, paragraph 38 of the joint report agreed by in principle, an agreement was reached in December, the UK Government last December states: but there could still be many a slip between cup and lip “This Part of the Agreement establishes rights for citizens in its ratification. Those citizens’ rights should be following on from those established in Union law during the UK’s guaranteed now to provide reassurance. membership of the European Union; the CJEU is the ultimate Secondly, I listened hard to an earlier contribution arbiter of the interpretation of Union law. In the context of the from the noble and learned Lord, Lord Brown of application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after Eaton-under-Heywood, in which he said that the main the specified date. The Agreement should also establish a mechanism utility of this Bill is to make sure there is legal certainty enabling UK courts or tribunals to decide, having had due regard if we crash out of the EU—because, assuming that to whether relevant case-law exists, to ask the CJEU questions of negotiations work, there will be a transition period interpretation of those rights where they consider that a CJEU during which EU citizens’ rights will not be affected. ruling on the question is necessary for the UK court or tribunal to The problem we are dealing with particularly in this be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation Bill is the risk of a crash-out. Of course, the Government brought within 8 years from the date of application of the will say to us, “Well, we’re very determined there won’t citizens’ rights Part”. be a crash-out”, but they will not exclude that possibility. We are not taking away any powers from the courts or It was clear from the intervention at the end of my tribunals. They decide whether to seek advice, and noble friend Lord Foulkes’ speech that the noble Lord, when they get it they then decide whether to take Lord Forsyth, actually relishes the possibility of a account of it. It does not in any way undermine the crash-out because he thinks, wrongly, that this is some principles the Government have adduced for withdrawal. bargaining leverage we have over the EU. I hope, therefore, that this is helpful. All I am suggesting is that the joint agreement the UK Government have Lord Forsyth of Drumlean: My Lords— 1057 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1058
Lord Liddle: I will give way in a moment. taking up so much parliamentary time that should be The question is whether we want the rights of EU devoted to other things. I bitterly resent it and wanted citizens to be used by the likes of the noble Lord, Lord to get that on the record. Forsyth, as a bargaining chip in these negotiations. If we do not, then we should support amendments along Lord Wallace of Tankerness (LD): My Lords, as the lines of that in the name of my noble friends Lord someone who is a co-signatory of the amendment that Foulkes and Lord Adonis, to give people the security was moved by the noble Lord, Lord Foulkes of Cumnock, to which they are entitled. I support what he said and also endorse what the noble Lord, Lord Cormack, said. This should be a 11.15 am no-brainer. Lord Forsyth of Drumlean: I am most grateful to The United Kingdom Government have agreed with the noble Lord, but he must not put words into my the European Union; the terms of that agreement were mouth. I simply asked a straightforward question as set out in paragraph 38 of the document of 8 December to what the position would be if this amendment were 2017, and the noble Lord, Lord Foulkes, has spoken carried in the event of no deal. Clearly, it would create them into the record. If one goes back to paragraph 33 enormous confusion. There is the separate issue of of the same document, it is interesting to read that: why we should allow extraterritorial jurisdiction on “It is of paramount importance to both Parties to give as the part of a foreign court, but I was not embarking much certainty as possible to UK citizens living in the EU and on that particular argument. If this is the best the EU citizens living in the UK about their future rights. The Parties noble Lord can do to support the amendment, I am have therefore reached agreement on the following specific set of arrangements to implement and enforce the citizens’ rights Part sure he will support the noble Lord, Lord Foulkes, in of the agreement”. withdrawing it in due course. Admittedly,a later paragraph suggests that the bestowing of or guarantee of rights will come in the withdrawal Lord Liddle: The noble Lord, Lord Forsyth, is agreement implementation Bill, but if one reads the clearly saying that he thinks there is a real possibility paragraph on the consistent interpretation of citizens’ we are going to crash out of the EU. We have heard rights, one will see that there is no such commitment that from him on other occasions and from people there with regard to a future Bill. It would not be right who agree with him. David Davis wrote to Conservative for this Parliament to pass a Bill which cuts off recourse MPs to say that it was a possibility that we would not to the Court of Justice of the European Union when pay up the money unless we got a good free trade we have already agreed that that avenue should be agreement. The fact is that any deal is better than no open in this specific case of ensuring consistency in deal: no deal would be an absolute disaster for this determining the rights of EU citizens living in the country. But if there is a serious risk of no deal from United Kingdom and UK citizens living in the European Members of the governing party—I am sure the Union. Government do not want that but there is pressure in I say to the noble Lord, Lord Forsyth, that if at the that quarter—I believe we would be right in this Bill to end of the day there is no agreement and we go guarantee the rights of EU citizens living in this crashing out, surely he is not suggesting that we would country. not honour our commitment. We have made that commitment to European Union citizens living in the Lord Hamilton of Epsom (Con): The noble Lord United Kingdom and United Kingdom citizens living said that we seem to be able to crash out and to have in the European Union. It must send some very alarming no deal as a bargaining chip. Surely, we either crash signs to UK citizens living abroad if it is suggested out or we have no deal as a bargaining chip—we that, should we go crashing out, nothing will be done cannot have both. to establish or secure the rights of those citizens—
Lord Liddle: The point I am focusing on is that this Lord Adonis (Lab): Did the noble and learned Lord is our opportunity to guarantee the rights of EU citizens notice that in the Prime Minister’sStatement on Monday, in the event of there being no deal. she specifically mentioned that the United Kingdom might seek to achieve associate membership of certain European agencies? She said that, Lord Cormack (Con): My Lords, I deeply regret “the UK would also have to respect the remit of the ECJ in that and resent the fact that we are having to discuss this regard”.—[Official Report, Commons, 05/3/18; col. 26.] and waste the House’s time. We had an opportunity at Now that the Government themselves have recognised the beginning of the day to make an unequivocal that there will be a continuing role for the European declaration that we would grant these rights to EU Court of Justice, is this not an absolutely appropriate citizens. We voted in that sense, a number of us spoke further role that it should play? in that sense and we had a large majority in that sense. Yet here we are, arguing. Frankly, I agree that the amendment is necessary, but we are now arguing Lord Wallace of Tankerness: It is not only appropriate unnecessarily about something we could have taken as a further role but one we have already agreed to. the moral high ground over and dealt with immediately As the noble Lord, Lord Cormack, said, on many after we had activated Article 50. It is indicative of the occasions noble Lords from all sides of the House mess into which we have got ourselves, and we are have spoken about securing the rights of EU citizens 1059 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1060 in the United Kingdom and UK citizens in the European I currently have by virtue of being a European citizen. Union. This amendment fleshes that out and it would This is one of many rights that we have as citizens be wrong to pass a Bill which denied something we living within the EU. For those rights to be meaningful, have already agreed. there clearly has to be a process of redress whereby a citizen can seek to protect his or her rights through the courts, and in this context Amendment 52 is highly Baroness Prosser (Lab): My Lords, I support my relevant as it would allow citizens to pursue their noble friend Lord Foulkes and I will speak to rights in the European courts after exit day, where that Amendment 54, which stands in my name. I will not is relevant. detain noble Lords for long because much of what I intended to say has already been said and covered. Agreement on the wording of this amendment has Lord Dykes (CB): The noble Lord is making an been expressed by various Benches in this House, so extremely good speech with which I agree, so I am this is not simply a one-sided argument. It seems to me sorry to break in. He referred to being a citizen of the that this country’s reputation globally will simply go UK. Under Maastricht, he is also a citizen of the EU. down the Suwannee if we are prepared, at one moment, Is he aware that the ECJ is beginning to receive to say that we agree to certain protections for people many messages from British citizens, both here and who have become embroiled in this dreadful situation living in other EU countries, asking for the ECJ to in which we find ourselves and then, a moment later, consider giving protection to them even post-Brexit if decide that, no, we do not agree with that and will not necessary? give those protections. What will people think of us as a nation if that is how the leadership of this country behaves? Lord Wigley: I am very grateful to the noble Lord, My amendment would extend the requirement for Lord Dykes, for his helpful intervention. We are all certain persons to be able to refer their legal matters European citizens; it is a European passport that we back to the European Court of Justice to a period of carry at the moment. Some of our rights are enshrined eight years. I trust that noble Lords will understand in the context of Europe, some in the context of the the need for such an extension. There is a statute of UK and some—in my case, as I mentioned a moment limitations existing for six years; if we do not include a ago—in the context of Wales. period of coverage, people whose claims may well start quite late after the leaving date may well find I am not going to speak at length to this amendment themselves without that coverage, which I hope will because there are several noble Lords who will speak be agreed. with greater authority on the legal positions involved. However, I want to use the principles underpinning the rights of citizens in the EU to say a brief word Lord Wigley (PC): My Lords, I have put my name about EU citizenship in a broader context: the rights to Amendment 52, which was spoken to by the noble afforded to us at present as citizens of the EU and the Lord, Lord Foulkes, and I support his comments and status of those rights once we leave. These matters are those made by the noble and learned Lord, Lord highly germane to the amendments before us—and Wallace, and the noble Lord, Lord Cormack, a moment they will not go away. ago. I wish to place the amendment within its context, which is EU citizenship—the citizenship of people resident in the United Kingdom, and on the European Baroness Altmann (Con): I want to present to the mainland. These comments are particularly relevant Committee an observation: according to the December in the context of the interventions of the noble Lords, agreement reached by the Prime Minister, citizens of Lord Forsyth and Lord Liddle, a moment ago. Northern Ireland will still be EU citizens after we I am a European; that is my identity. I am Welsh; leave. I am not sure where that leaves the rights of that is my nationality and, as noted on my European everyone else in the UK. passport, I am a citizen of the United Kingdom. I have rights and obligations under each of these three Lord Wigley: I am grateful to the noble Baroness headings. Some of those rights are protected by for introducing that point; I was going to move on to it international law, some by European law, some by UK a little later but I shall do so now. Northern Ireland law and some by Welsh law. Taking established rights creates a precedent, if the undertakings that have been away from a citizen is a very serious matter. Citizens reported are indeed carried out. It is a part of a union are protected in generality against any negative impact of countries that may be retaining its rights after the upon them that may arise from taking some of these other parts of the UK may lose theirs. Of course, there rights away from them. is a precedent in the context of Ireland: people in the There is clearly a wide range of such rights but I Irish Republic maintained many of the rights relating shall refer to only one. Page 32 of my passport states to the UK that they previously enjoyed after the that if you need consular assistance when you are Republic was formed, and for many people those outside the EU in a country where there is no British rights continue up to today. As the noble Baroness has embassy or consulate, you can get help from the said, many of the rights relating to the EU of citizens embassy or consulate of another member state of the of Northern Ireland may well continue after Brexit. If EU. That is a right that I have today but which I may it is possible to negotiate such rights for some of the lose as a result of the UK leaving the EU. In other citizens of the UK, why cannot such rights be ongoing words, Brexit may be taking away from me a right that for all its citizens? 1061 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1062
Lord Cormack: Do we not have a particular at a later stage. Suffice it to say, at this stage we need responsibility for the smallest group of citizens for these amendments to safeguard the position of people which this Government have responsibility—namely facing such a serious threat after Brexit. I am delighted those living in Gibraltar? to support the noble Lord, Lord Foulkes. 11.30 am The Earl of Clancarty (CB): My Lords, of particular Lord Wigley: I am sure we shall come on to the interest to me in this Bill is the way in which ordinary position of Gibraltar in greater detail at another time. people would be most directly affected by leaving the In many ways this parallels the issues that arise in the EU. I have tabled Amendment 210, which asks the context of Northern Ireland. If a solution to Northern Government to support retention of European citizenship Ireland were enshrined which allowed the free movement where the individual British citizen wishes to do so. of people and goods across the border, that might well Although not explicitly stated in the amendment, it solve the problem of Gibraltar as well. We need to would also cover those who had not yet acquired bear in mind our responsibilities to Gibraltar and to European citizenship at the time of Brexit. I am get an amicable settlement which would be acceptable grateful for the support of the noble Baroness, Lady in the European context, and therefore acceptable to Humphreys, and the noble Lords, Lord Judd and Spain as well as to the people of Gibraltar. I am Lord Davies of Stamford. grateful to the noble Lord, Lord Cormack, for raising this. The importance of European citizenship and the I want to use the principles underpinning the rights effect of its loss at the individual level has not been of citizens in the UK to say a brief word about sufficiently considered or explored, either before or in citizenship in the broader context and about the rights the 20 months since the referendum. Nevertheless, its afforded to us at present as citizens of the EU, as well retention has been consistently advocated by Guy as the status of these rights once we leave. These Verhofstadt, the European Parliament’s representative matters are highly germane to the amendments before on Brexit. Last year, it was the subject of a paper by us. Incidentally, there is an Opposition Day debate in Volker Roeben, then professor of international law at the House of Commons this afternoon, initiated by Swansea University, for Plaid Cymru MEP, Jill Evans. my Plaid Cymru colleagues, on this precise topic. From the Government’spoint of view,a useful conclusion of this paper was a belief in the feasibility of an By pursuing what may become a no-deal Brexit, associate citizenship, if citizenship rights were to be the UK Government would, in effect, strip—at least extinguished after Brexit. Roeben’s belief that this potentially—our citizens of some of their rights. Our should be so was given some traction following the rights to travel, live and work across Europe will be submission last month of a request to the European curtailed. Our children’s rights— Court of Justice for a preliminary ruling in the case Baroness McIntosh of Pickering (Con): I am grateful brought by British residents of Amsterdam. It is early to the noble Lord. Currently, a British lawyer, dentist days yet, but it is worth noting, in the context of my or doctor can practise in any other European country. amendment, this statement from the judgment: There is a reciprocal right for nationals of other EU “Once legally acquired, EU citizenship is an independent countries to practise here. We are losing dentists and source of rights and obligations that cannot be simply reduced or doctors because of the certification process which will affected by actions of a national government”. be subject to negotiation on the basis of mutual The loss of European citizenship would not just recognition. Is this right, which could be curtailed, adversely affect the British abroad and, indeed, European justiciable under his amendment? citizens in the UK, but every British person living in the UK. Following the referral to the ECJ, QC Jolyon Lord Wigley: Of course, this amendment provides a Maugham, supporter of those who brought the case mechanism to create a redress for people who feel that in the Netherlands, made a particular point of saying they are losing these rights. It may not be the only that the final outcome of this case would have implications mechanism available. There may be provisions under for residents of the UK as much as those abroad. The international law, which I shall mention before I close. loss would be of all those rights that EU citizenship It is not only our rights that are being curtailed but the embodies, both in terms of the principle of that rights of our children—the right to study in any of the citizenship—the loss of identity that many would feel other 27 countries across the EU may well be lost. It is deeply, and which cannot be overestimated—and the questionable whether, in the context of these rights, we very real practical concerns about rights and opportunities shall thereafter be able to call ourselves European in that would be lost or compromised, including being the full meaning of the word. I am a European. I am a able to freely travel, work, study and raise a family Welsh European and no Government should be able abroad. to take away from me or from any citizen of these This is likely to have the greatest effect on young islands their right to their European identity, nor any people living in the UK—an effect with no silver of the practical rights they currently hold by virtue of lining and which can only register negatively, as a loss. that identity. At the level of the individual citizen, it is not replaced It is by virtue of their de facto European citizenship by anything. European citizenship is additional to that the citizens of these islands currently have recourse British citizenship, and that is the reality, whatever the to the European court. Stripping people of their citizenship outcome of the case begun in Amsterdam. As Sunday’s against their will is illegal under international law. I Observer editorial responding to Theresa May’s speech, have tabled another amendment which explores the but which might just as well have been referring to the retention of EU citizenship. I hope this will be debated potential loss of citizenship, put it: 1063 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1064
“It was a defeat for young people, British and European, who, The Earl of Clancarty: I am not sure that is the case more so than older generations, will perforce inhabit an ugly new at all. It is very likely that visas will be introduced. world of harder borders, work permits, bureaucracy and pervasive state intrusion”. The referendum notwithstanding, many British people, Baroness Ludford (LD): It may well be that we both abroad and in this country, are angry that they benefit from a visa waiver but it is also likely that we should be stripped of their European citizenship without will have to apply for what is often called a “visa lite”, their own individual consent. For all these reasons, a which similar to the United States’ ESTA. The EU is Brexit that does not allow the retention of individual bringing in something called ETIAS and for most European citizenship for those who wish to retain that people it will not amount to a big difference: you have citizenship is a hard Brexit—more than that, it is a to go online, pay a fee and answer lots of questions brutal Brexit, whatever the outcome on the wider about health, criminal background and so on. We may national scale in terms of any trade deals. not require a visa but we will need a “visa lite”, so it What is being asked for in this amendment is very will not be hassle-free. simple, and the precedent already exists, as this is no different from the dual citizenships that some in this The Earl of Clancarty: Absolutely.Whatever happens, House possess. The amendment asks only for the we will be at a disadvantage to everyone else in Europe continuing acknowledgement of that additional and that is really significant. citizenship. Do we now wish to start stripping people of all citizenships that are not British—for example, Australian, Canadian, American, Indian, Chinese? The Lord Judd (Lab): My Lords, I support the amendment. list goes on. When this whole matter originally came before the At the level of the individual, the only solution that House, we had the firm assurance from the Front would be realistic or fair is that the 52%—or whatever Bench opposite and the strong assurance from the the figure is now—may hand in their European passports Prime Minister that this was to be a top-priority issue and renounce their European citizenship, and the in their considerations of our future. As the noble 48% retain theirs. The reality, of course, would be Lord, Lord Cormack, said so powerfully, here we are, quite different. We have heard in the news about noted way down the road, and we have made no progress leavers who have bought, or are buying, EU citizenship whatever. as we speak. As I am sure others in this House do, I The reason why I feel so strongly and passionately know of those who voted leave who, in circumstances about this issue is that I fear that we are demeaning where they are lucky enough to do so, are applying for and undermining the whole concept of citizenship. European citizenship for themselves and/or their children, Citizenship is something that people have fought for sometimes through having a husband or wife who is and struggled for centuries to establish. There are an EU citizen. Hypocritical? Of course it is, but it is thousands and thousands of people from Britain in also testament to the significance and desirability of Europe. I declare an interest: in my extended family I retaining that citizenship and the real loss involved, have family members living in Europe and family with those who are lucky or rich enough becoming the members living in this country who are married to first-class citizens of tomorrow, when previously it Poles, Czechs and so on, and it is a very rich experience. was an entirely equal arrangement for all of us. Such people have gone to Europe in the confidence of The loss of European citizenship will in itself create citizenship and all it has meant historically—to make an unequal society within the UK. Look too at Northern new lives and build their future in the knowledge that Ireland, as has been remarked upon: all those born they have citizenship of Europe. there—about 89% of that country—will retain European Do we or do we not stand by the concept of citizenship, further turning the rest of us in the UK, in citizenship? If we do, how can we contemplate any effect, into second-class citizens. Of course, I am not future in which we have not absolutely guaranteed suggesting that Irish citizenship be given up. Late last that people have their rights of citizenship? My noble year,Theresa Maygave her agreement to an understanding friend referred to anxiety being out there, and it certainly that goes back to 1917 and that was rightly confirmed is. We are talking about men, women and children; in the Good Friday agreement. Better, surely, that all about the futures of people who are working; about of us who wish to should be able to retain our individual vulnerable people who have reached old age in the European citizenship. The Minister may say that that context of what they believed was European security— offer is not on the table, but a Government and a about real human situations. We need firm, unequivocal Parliament that really want to bring this country back assurances from the Government that we believe not together and heal the divisions would take the initiative just in the right of citizenship, but in the whole concept and put it on the table. That is the right course of of citizenship that has been established across Europe action, and I hope that the Government accept this in our history. We want cast-iron guarantees that, in amendment. one way or another, that is going to be fulfilled. Lord Green of Deddington (CB): I will stay away from the law on this, but when it comes to travel and Lord Haskel (Lab): My Lords, I shall speak to so on to the EU, is there not a discussion to be had, the Amendment 211, which is in my name and deals with likelihood being that most people—unless they are our rights but in a slightly different way. It would going to work there—will be able to move around ensure that after withdrawal, our rights and protections Europe without a visa? If I may say so, it is therefore remain intact by maintaining the standards at home not quite as disastrous as the noble Earl suggests. and at work that we have come to expect in our daily 1065 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1066
[LORD HASKEL] Lord Forsyth of Drumlean: I am most grateful to life as part of our normal existence, and that those the noble Lord and I understand the point he is standards would not be sacrificed or lowered in any making about international standards and international future negotiations. bodies. However, the effect of his amendment is, surely, I tabled this amendment some weeks ago and was that the British Parliament would be tied, in future, to pleased to see it reflected in the Prime Minister’s decisions made by the European Union and the European speech last Friday and in her Statement on Monday, court. Why does he not trust this Parliament to set when she spoke of maintaining current standards in regulations that are appropriate for the standards for some sectors. My amendment calls for them to be our own people? maintained in all sectors, because we cannot pick and choose where our quality of life is concerned. Even Lord Haskel: I do trust Britain to set its own Monsieur Barnier seems to agree, and in his recent standards, I just do not want to see them lowered. I am draft document he speaks of equivalent standards. concerned that they will be lowered because of trade negotiations and the give and take that will go on in negotiating withdrawal. 11.45 am Lord Forsyth of Drumlean: On that point, why does Like my noble friend Lord Foulkes, I think this the noble Lord not think it possible that we might set amendment is helpful to the Government, because it higher standards, as for example we have done in accords precisely with their own industrial strategy of respect of paternity rights and other matters? building on our strengths by racing to the top. Lowering our standards, on the other hand, implies a race to the Lord Haskel: I would very much welcome setting bottom. Rightly or wrongly, trade agreements are higher standards and am sure that all noble Lords negotiated in secret. Yes, trade deals involve plenty of would do so. My concern is that we should not lower give and take and bending of the rules,but this amendment them, because that is one of the rights we should not ensures that, whatever the outcome, these negotiations be giving away. will not damage our normal way of life. On Monday, the Prime Minister spoke of the EU Lord Newby (LD): My Lords, does the noble Lord Chemicals Agency, and she was right to do so. Through agree that in her speech last week, the Prime Minister REACH—the registration, evaluation, authorisation said that she wished us to retain an association with and restriction of chemicals—we ensure that 9,000 the European Medicines Agency,the European Chemicals chemicals are proven safe before they are made available Agency, and the European Aviation Safety Agency, to the general public. This is the precautionary principle specifically to mirror 100% every standard that they at work. In some countries, products and services are set? The noble Lord, Lord Forsyth, says that we still withdrawn only after they have been shown to do have a choice. No—if we are associate members of harm. This amendment ensures that we do not give up those bodies, not only do we not have a choice but we the precautionary principle and allow ourselves to agree that we are bound by the decisions of the become a dumping ground for untested products and European Court. The Prime Minister set out very services. clearly how damaging it would be were we not to be Some say that these standards are just red tape and members of those bodies, and therefore why we should nannying, and that if consumers do not want to buy retain membership of them. products that are made to lower standards, they will see it on the label and choose not to buy it. I put it to Lord Haskel: The noble Lord is absolutely right the Minister that this is totally unacceptable. Some say and in a later amendment, I will call on the Government that all this can be delayed to a later stage. I say that it to set up institutions which would not accept the has to be included in this withdrawal Bill, so that from European standard but enforce our standards— day one, Whitehall, local government and public institutions that are independent of the Government. institutions all know that they cannot make decisions The importance of independence is illustrated by the that lower our standards. fact that the main reason why Ministers are doing We also know that non-tariff barriers are the biggest something about poor air quality in some of our cities barriers to trade. Most of these non-tariff barriers is the risk of fines or legal action from the EU, relate to standards. Maintaining our standards will possibly through the European Court of Justice. ensure the least disruption to trade and the maximum As other noble Lords have observed, we are now continuing inward investment in technical development. being less doctrinaire about the European Court of Indeed, it is important that we continue to sit at the Justice. Being doctrinaire is the reason why we do not table setting these standards—standards which are want EU standards because of the possibilities of acceptable in many other countries, including Asia, disputes being settled by the European Court of Justice. Africa and elsewhere, not only because they facilitate But many institutions which enforce these standards trade but because they illustrate a shared vision. have their own systems of settling disputes, and these Where we do not accept EU standards, this systems have stood the test of time. So whatever the amendment, and my amendment that we will come to outcome of our withdrawal negotiations, a major later, calls for the Government to set up the institutions concern for Ministers must be the disruption to our to enforce them. These institutions must be independent way of life and to trade. This amendment would go of government. The importance of independence is some way towards helping Ministers to deal with this illustrated by the fact— concern and I look forward to the Minister’s reply. 1067 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1068
Baroness Ludford: My Lords, I shall speak to Lord Green of Deddington: Will the noble Baroness Amendment 202, which is in the name of my noble explain how we could possibly deal with several million friend Lady Smith of Newnham, who is unfortunately people unless we invite them to apply? unable to attend because of illness. It is also in my name and that of my noble friend Lord Roberts of Baroness Ludford: There could be a simple declaratory Llandudno and the noble Lord, Lord Judd. Before process. If any parliamentarians in this Chamber have going on, I fully agree with what has been said in this ever had to deal with the Home Office on behalf of debate about the need to retain EU citizenship for us one of their constituents, as I did when I was an MEP, all, and about the hypocrisy of some of those who they will know what a happy—or otherwise—process supported and continue to support leave, but who that is. Something simple and declaratory such as have somehow managed to acquire a passport of an going to the local town hall could be worked out. It EU member state, such as Malta. That enables them should be light touch: a declaration of existing residence. to continue enjoying the benefits which they are quite That is quite different from having to apply to the happy to deprive the rest of us of. Home Office. Amendment 202 calls on the Government, The fear has been expressed on behalf of the group, “to maintain, preserve and protect the rights of”, the 3 million, that perhaps around 10% of people EU citizens in the UK. I therefore very much agree might fall through the cracks because their application with the remarks of the noble Lord, Lord Cormack, is rejected or because they do not apply. Some people about the fact that that has not been done. We are are not very aware of what is going on in the law or seeking a guarantee that existing rights will remain they do not have access to computers and so on. There unchanged. The Government have had the opportunity is no legal presumption in favour of granting settled in the last 21 months to give a unilateral guarantee status to all residents who are legally living here before that existing rights would be retained. They were exit day, which begs another question. Perhaps the invited to do so by the EU Select Committee, in a Minister could explain to us what exactly is going to report produced under the chairmanship of the noble happen to those people who arrive during the transition Baroness, Lady Kennedy of The Shaws—I had the period. That, of course, is something the Prime Minister pleasure to serve on that sub-committee—but have has conceded, in that they will have a status, but it is not done so. They also had the opportunity to try to slightly unclear how it is going to work. ring-fence the discussion about citizens’ rights from all There has also been no clarification of the continuation the other matters being discussed within the withdrawal of all the individual economic rights and recognition agreements but, unfortunately, they have not done of qualifications that EU citizens currently enjoy and, that. as I have said, no guarantee that the registration will EU citizens resident in this country and British be simple and light touch. There is supposed to be a citizens resident in the EU 27 have indeed been used as digital application system. Can the Minister tell us bargaining chips. That has led to great distress for exactly where we are in the construction of that system? many of the 5 million affected citizens, who live in a We all know that IT projects, in particular Home state of anxiety and limbo that was not helped by the Office IT projects, have a habit of becoming problematic. words of the Prime Minister in her speech to the Moreover, the backstop to all this is that the European Conservative Party in October 2016 about “citizens of Parliament will have to approve the withdrawal agreement, nowhere”. She has now resiled from that kind of including the conditions for EU citizens. I note that terminology, but unfortunately the damage has been Mr Verhofstadt tweeted yesterday, done in that the tone is somehow one of, “You do not “the European Parliament expects a cost free and burden free belong here if you have multiple allegiances. It is not registration process”. good enough to be a contributing and responsible It wants to ensure that there is no discrimination person in this country”. The Government still have a between EU citizens and British citizens, which of chance to offer unilateral guarantees and I invite the course raises the question: are the Government planning Minister to tell us today that he is going to ignore the to introduce ID cards by the back door in order to say mire into which all of this has become embroiled and that we are all being treated the same? just give a straightforward guarantee. There are many holes and gaps that the Home Many ambiguities and gaps still exist in the current Office is still unable to answer questions on. I do not state of play over the discussions about settled status. have time to cover them all but I would like to ask Some of the issues are being taken up in correspondence about comprehensive sickness insurance—the requirement with Home Office Ministers on the part of the EU that people have private medical insurance—because Select Committee. The problem is that settled status is very mixed messages are being given about it. The not the retention of the same rights and protections position of the European Commission has always that EU law currently confers on people; it is based on been that if people are allowed to use the NHS, that UK immigration law and has all the features of that amounts to comprehensive sickness insurance under law, including the hostile environment that is currently the directive. It started legal action but that has apparently being created. People will have to apply for settled not progressed. status. It will not just be a question of carryover or cut and paste—they will have to apply. Apparently, the Home Office expects the vast majority of cases to be Noon granted, although that begs the question of which Home Office guidance seems to confirm that ones will not be granted to people who are currently comprehensive sickness insurance is not a requirement resident here. for acquiring settled status, but I will read out a reply 1069 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1070
[BARONESS LUDFORD] that took the decision whether or not to refer such to a freedom of information request that appears to matters to the CJEU. It would still be the decision of a make little sense. It remains the Government’s intention UK court. not to require evidence that economically inactive EU citizens have previously held comprehensive sickness Lord Mackay of Clashfern: I think that is meant to insurance in applications for settled status, but it also be an intervention, because I have not quite finished. remains the case that: The situation is that the British courts, the Supreme “In some circumstances, comprehensive sickness insurance is Court in particular, have discretion to look at any still required for the purposes of accessing the healthcare system judgment that they wish, and to raise any question in the UK”. they wish in these judgments. There is nothing in the So you do not need to show evidence that you have present Bill that impedes that, except in respect of it—but you will need it in order to access the healthcare questions of European law,because the courts themselves, system. Could the Minister kindly explain the apparent and the members of the Supreme Court, have been contradiction between those two statements? This is anxious that if they paid too much attention to the causing people a lot of anxiety, as the Minister is well European court after Brexit, they might be accused of aware. A lot of stay-at-home parents, spouses who being involved in politics. They have sought a direction have been economically inactive, carers, disabled people, from Parliament on this matter, and that has been pensioners and so on are extremely anxious about attempted, and I hope it is successful. what is going to happen on this subject. Yes, it is I personally do not share the animosity that exists technical— in some quarters towards the European Court of Justice. It is over 30 years now since I often appeared Lord Green of Deddington: I am very puzzled as to before them, and I have nothing but praise for the way how any of this is relevant to the Bill we are discussing. in which they do things. They do things very differently Does the noble Baroness not understand that this kind to us. There are far fewer oral hearings—at least, there of stuff, which is being repeated time and again, is were when I did it, which was a long time ago. There is actually doing more harm than good? It is raising much less oral pleading than there is in our courts. issues for people who do not face them. It is quite clear Actually, our courts have moved slightly in that direction that the maximum is being done to help people qualify in recent years, since I was last involved with them—and for residence in the UK. We could not do more than in some cases quite far in that direction. we have done. Frankly, this is just making trouble. The respect I have for the European Court is of the highest order, but I do think there is a difficulty Baroness Ludford: It is highly relevant to whether because, after Brexit, no judges or advocates-general people are being guaranteed their existing rights to of the British Bar will be members of the court or legally reside in this country. I am quite surprised that advocates-general in the court. That is an important the noble Lord thinks it is not relevant to an amendment factor to be taken into account in the arrangements. I that is about maintaining and guaranteeing the existing am not part of the negotiations—I have nothing to do rights of EU citizens. The confusion is caused by the with them—but I do believe that that point has to be Home Office’s lack of clarity, not by me. taken into account. There is a usual rule that the I end on that note. I would like some answers from people administering justice are the people who are in the Minister to these detailed questions and many accordance with the arrangements between states. others. International courts, for example, may not have representatives from all the states that appear before Lord Mackay of Clashfern (Con): My Lords, I want them, but there is a question to be considered in that to make two short points. The first is that the precedent connection, because the Court of Justice referred to in of giving rights in other countries when there is a the amendment will not be the Court of Justice as it is separation is set up very well by the arrangements now. between ourselves and the Republic of Ireland in relation to Irish citizens and their rights in our country, Lord Hope of Craighead (CB): My Lords, I would which are guaranteed by statute in a number of cases. like to intervene, following what the noble and learned Secondly, on the idea that we have to refer all these Lord, Lord Mackay, has said, and referring to the matters to the European court, anyone who reads the amendment that was moved by the noble Lord, Lord judgments of our courts from day to day will realise Foulkes of Cumnock. One of the problems I have that the fairness they exhibit towards foreign citizens faced since looking at this Bill, is trying to find hard is of the highest possible standard. I know of no examples of situations in which the Supreme Court country in the world and no court in the world that would wish to refer a matter to the European Court of succeeds in getting a higher standard; there are others Justice. that have an equally high standard, but I know of There is a very good example reported in Monday’s none that has a higher one. It would be a most Times of a case called SM (Algeria) (Appellant) v retrograde step for this House to do anything that Entry Clearance Officer. I will take a moment to suggested to people in Europe that they could not get explain what the case is about, because it is a good justice from the courts of this country. example of citizens’ rights. SM was a little girl, who was placed into the legal guardianship of EU citizens, Lord Foulkes of Cumnock: Just to clarify, my who happened to be in Algeria. The question concerned amendment does not suggest that—quite the reverse. her position in coming to the United Kingdom as a It would be the British court or the British tribunal member of that family under the Immigration (European 1071 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1072
Economic Area Regulations) 2006. Merely referring I referred to it myself—was that, as part of the agreement to those regulations reminds us that they would become, that was struck between the United Kingdom and the as I understand the position, retained EU law under European institutions in December,provision was made to, Clause 2 of the Bill. “establish a mechanism enabling UK courts or tribunals to decide, The problem arose because the court saw that the having had due regard to whether relevant case-law exists, to ask regulation had been transposing wording from a directive, the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for which is the normal way in which these things work, the UK court or tribunal to be able to give judgment in a case but the transposition was inaccurate. This is a situation before it”. I have encountered before—it happens from time to So it is not a case of questioning the ability of the time. The question is how to deal with the inaccuracy. Supreme Court. We have entered into an agreement The inaccuracy was that while our regulation talked which says that there must be an opportunity or a about “family member”—somebody who was put into mechanism to refer to the Court of Justice of the the legal guardianship of a couple, would normally be European Union. How does the noble and learned regarded as a member of the family—the directive was Lord see the mechanism for giving effect to what the talking about “direct descendants”, and she was not a United Kingdom Government have agreed? direct descendant, because she was not actually related, in that sense, to the people who had become her guardians. In order to resolve that problem, the court Lord Hope of Craighead: I have listened with great found it necessary to refer the matter to the European care to what the noble and learned Lord has said but I Court of Justice—which it did on Monday. That was cannot look into the future. I do not know what is under the existing position. going to happen as a result. We just have to look at the In resolving the point raised by the noble Lord, present situation. There are two factors to bear in Lord Foulkes, it may help to ask how that matter mind. As far as the UK is concerned, for people would be handled after exit day. I may be wrong, but looking to come here, an immense amount of citizens’ my understanding is that it would be for the Supreme rights are guaranteed already under the regulations Court to resolve the issue itself. The directive would which implement directives. We ought not to lose sight come into EU retained law under Clause 3, so we of that. Secondly, problems of interpretation because would have both pieces of legislation to look at. I of conflicts between the wording of the directive and think that the court, having regard particularly to the our transposition of it, give rise to some doubt. Under way in which we had translated the directive, would the existing position, there is an obligation to refer give great weight to our own language and regard this which will not be present after exit day. This is a little girl as part of the family and therefore entitled to different situation with which I believe our courts will take the benefit of the regulation. be able to cope perfectly well. In explaining the situation, I hope I have not made it too complicated, but it is a good example of citizens’ Lord Forsyth of Drumlean: Before the noble and rights, accorded by our own regulations, giving effect learned Lord sits down, in summary, was he saying to EU law. There must be very many in the corpus of that the amendment of the noble Lord, Lord Foulkes, regulations which forms part of EU law. It comes back is completely unnecessary? to the point made by the noble and learned Lord, Lord Mackay of Clashfern. The Supreme Court looks Lord Hope of Craighead: With great respect, I very carefully at the interests of children and would would not put it in that way. It has given me an accord every weight to the normal rules about the opportunity to bring forward an example which I am priority given to the interests of the child in construing hoping the Minister will be able to comment on. The the regulation in a sense that fits with our own language. noble Lord has raised an important point. We all care I should have thought that, after exit day, the question about citizens’ rights. I hope I have drawn attention to of referring the matter to the European Court of the context in which one looks at the amendment. It is Justice simply would not arise because the court would a well-crafted amendment to which the Minister may be capable of resolving the issue itself without being have an answer along the lines I have suggested. bound by the problem of having to refer something which was not that clear. If I may use the English 12.15 pm expression, it was not crystal clear; therefore they were bound to refer. Under the situation after exit day, any Lord Roberts of Llandudno (LD): My Lords, I superior court will be fully able to resolve the problems speak not as a lawyer—I find it difficult to follow of interpretation that arise. Will the Minister confirm some of these legal arguments—but as a grandfather that, in this situation, there would be no need for a to seven grandchildren, each of whom was born into reference because our courts would be able to deal European citizenship after the treaty of Maastricht. with it perfectly properly, looking at the language of They are just representative of the more than 18 million our own regulations, despite the problem that might others who were born since that treaty was signed. If have arisen in translating them from the directive into the Bill were to go through unamended, we would English? withdraw rights and hopes given to them during the past 25 years. What moral right do we have to do this? Lord Wallace of Tankerness: I am grateful to the If I spoke today in favour of this Bill, what would I noble and learned Lord. The point made by the noble say to Haf, Osian, Manon, Megan, Reuben—I am Lord, Lord Foulkes, in moving this amendment— trying to remember their names—Ianto and Aiden? 1073 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1074
[LORD ROBERTS OF LLANDUDNO] our country’s problems on foreigners. I could not be They would say, “Taid”—which is Welsh for further away from that world view, although I believe grandfather—“why did you not oppose this? Why did that some of the Brexiteers—I have some names here you not oppose the loss of all these freedoms and the but will not read them out—and others have a lot to availability we had in the previous time? You didn’t do answer for in the way that they used migrants as a thing”. I am not the only grandfather in this room; I scapegoats for the very real destruction that our own am not the only grandparent in this room. If a grandparent Government have cast upon our society with their can vote to withdraw rights that have been cherished slash-and-burn austerity measures. The Government by their grandchildren, they are doing a tremendous sowed the seeds for a lot of the division and anger that disservice. To the various concessions in travel, in prevail in our country. education and in so many other ways that we get as I celebrate migrants and migration. Humans have members of the European Union there will now be always moved around as we seek opportunities and barriers, and it will be because we went along with the form new communities. It is an essential part of what Bill—I would nearly call it an insane Bill—to withdraw it means to be human and without migration we these rights from those who have cherished them and would probably be stuck in isolated little groups, still used them during the past 25 years. We were able to using flint tools and eating with our fingers. Instead, choose to be members of the European Union; they humans have done the most astonishing things and we were not. They were born into British citizenship; they have all gained enormously from the massive cultural were born into European citizenship, and, as my friend, and technological growth that results from humans the noble Lord, Lord Wigley, said, they were born into meeting humans and sharing ideas, cultures, stories Welsh citizenship. We cannot withdraw these things. It and lifestyles. These amendments would do what is is a blind way of treating the future generation. absolutely right and fair. They are about breaking That is all that I will say at this point. Seriously, we Brexit away from those who espouse anti-immigrant have no right. How will the Minister defend the withdrawal views and saying that Brexit is about being more open, of such rights from 18 million citizens? We should tolerant and diverse than ever before. A Brexit that remember that only 17 million people voted to leave; cannot achieve that is not a Brexit worth having and we are talking here about 18 million. How on earth not one that I will support. can the Minister defend such a move? Baroness D’Souza (CB): My Lords, if there is to be Baroness Jones of Moulsecoomb (GP): My Lords, I a commitment to the highest standards of protection support the amendments. I speak not as a grandmother, of citizens’ rights—I go back to the amendment tabled although I am one, but as somebody who not only by the noble Lord, Lord Haskel—this would presumably voted for Brexit but campaigned for it. Therefore, I include the European Charter of Fundamental Rights. carry quite a heavy burden to help ensure that we get But the Bill suggests that we omit that charter, so can the best outcomes for people living in our country. the Minister say what would be the mechanism by When voting to leave, no one voted to lose their which those charter rights would be guaranteed for rights. The amendments would ensure that the EU citizens who remain resident in the UK? Government safeguarded the rights and protections of people as we negotiate leaving the EU. It has been Lord Adonis: My Lords, Amendments 160 and 170 hard to get much sense out of the Government about are in my name and they would prevent regulations their plans for Brexit. The default message is to refer being made under Clause 9 if they, to the Prime Minister’s Florence speech or Lancaster … House speech, but platitudes about “getting the best “remove, reduce or amend the rights of”, deal” or “making Brexit a success” simply are not an EU citizen, enough to guarantee that our Government do not risk “lawfully resident in the United Kingdom on any day before 30 undermining our basic rights and protections during March 2019”, the Brexit negotiations. or until such time as Her Majesty’s Government have The Government seem unable to agree on many of signed a reciprocal agreement with the European Union the big issues and it is unclear who is in charge. In the on the rights of citizens post-March 2019. absence of principled, clear leadership, Parliament The issue here is simple. It is about giving legal must take the reins and do what is right for the effect to the assurance, which the Prime Minister has majority of people. The amendments would protect repeatedly given since Article 50 was invoked, that the both British citizens and EU citizens, people who have rights of European citizens who are currently resident built their lives around the opportunities given to in the United Kingdom will be respected. The Prime them by EU membership. They would force the Minister said in her October 2017 email to EU citizens Government to stop abusing our rights as a political not only, “I couldn’t be clearer”—actually, most of the bargaining chip. There should never have been any Prime Minister’s statements which are not clear begin question over the rights of EU citizens living in this with “I want to be clear that”. She said she could not country, but our Government insisted on using our be clearer that, basic rights as part of their struggle to gain bargaining “EU citizens … lawfully in the UK … will be able to stay”. power in negotiations. She also said: It is often conceived by supporters of remaining in “When we started this process, some accused us of treating the EU that the main motivation for Brexit is a narrow- EU nationals as bargaining chips. Nothing could have been minded, nasty little racist attitude which blames all further from the truth”. 1075 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1076
If nothing could be further from the truth, why has position of, “Let us be clear: no rights will be taken Parliament not been invited by the Government away”, the less confident many people feel about their immediately to give legal effect to the rights of EU future. citizens resident in this country? It is a very simple Before I finish, perhaps I may say that I am grateful issue. The reason why it has not happened is precisely to the noble Lord, Lord Cormack, who also got off that the Government do want to use EU citizens as my chest a lot of the things I feel about this issue. bargaining chips. Saying that they do not, when all the evidence is that they do, does not, I am afraid, cut the mustard at all. Lord Adonis: Perhaps I may respond to the noble The noble Baroness, Lady Ludford, also raised a Baroness and make one further brief point. The noble crucial issue, which I hope the Minister will address. and learned Lord, Lord Mackay of Clashfern, said What is to happen to EU citizens who come here that we should be proud of our courts and the work during the transition? We all know what the Minister they do. I entirely agree with him; however, we are told will say: that it all depends upon the agreement. When time and again—indeed, it is part of the argument for the Prime Minister brings that agreement down with Brexit—that our courts are of course subservient to her tablets of stone, whether that happens in October, Parliament. They implement and give judgments on November, December or January, it will have to include the laws that are passed by Parliament, which has still a precise set of legal commitments on what is to not guaranteed the rights of European Union citizens happen in the transition. The only point I make in resident in this country. Moreover, because it is not respect of that, which I hope the Minister might being invited to do so by the Government, at the address in his remarks, draws very much on what the moment it will not make any declaration about those noble Lord, Lord Roberts of Llandudno, and the rights after the end of March next year. That, I believe, noble Earl, Lord Clancarty, said: that this is a really is shameful. shabby way of presenting this country abroad. Let us be clear. People across the world, including people whom we want to work in our National Health Baroness Hayter of Kentish Town (Lab): My Lords, Service and make a big contribution to this country, I want to concentrate on the last point made by my are having to make decisions as we deliberate on noble friend Lord Adonis and on the arguments made, whether they can come to this country from the end of particularly on Amendments 49 and 52, by my noble March next year. Quite soon, that will be a matter not friend Lord Foulkes and the noble and learned Lord, of months but of days in which they will have to make Lord Wallace of Tankerness. I do so because the bit these decisions. that is so critical is implementing what in December the Prime Minister said would be on offer to EU I am sure that the noble and learned Lord will claim citizens already living here and which we need to put that we are open and that we welcome them coming into law. That is an absolute priority and a priority for here. The noble Baroness, Lady Jones of Moulsecoomb, this Committee. made what I thought was an excellent speech in favour As we have heard, there is a particular need, because of remaining in the European Union because we of what the Prime Minister agreed to in December, for would embrace all the rights set out in the treaties. the Government to rethink their blanket refusal to How is it that we can look at people straight and say to allow access to or take heed of the Court of Justice of them, “This is a great place to come and live. We are the European Union within this Bill. It has been going to maintain your rights, but even now, we are written out of the Bill precisely because of the draft not prepared to tell you what those rights will be in a withdrawal agreement—it is called a report, not an year’s time”? This country is presenting a terrible face agreement—produced in December. As drafted, that to the world. Frankly, I am ashamed of the position document will allow access to what I still call the ECJ our Parliament is adopting towards the rights of existing for EU citizens resident here for another eight years, EU citizens, who still do not have those rights enshrined which is why that is mentioned in the amendment. It in law, and of those we are seeking to attract to this would fulfil the undertaking written into the report country from the end of next March. last December with regard to their rights. As the whole Brexit project starts to disintegrate, It was suggested in one of the meetings I had with a nothing is undermining its moral foundations more Minister—I cannot remember who—that everything than our inability as a Parliament—and, indeed, the is fine: we should not worry because it will be put into noble and learned Lord’s Government—to give firm law by repealing parts of the Bill before us more or less legal undertakings in respect of people who are resident as soon as Her Majesty’s ink is dry on Royal Assent. in this country and came here in good faith. That is one way of dealing with it, and I gather the idea is that we pass this Bill and then start amending it. But to me, that seems a little weird, given that this Baroness Hamwee (LD): My Lords, does the noble Bill is before us now and can be amended in the way Lord agree that the issue is important not only to required by the December agreement so that we get it those who might be thinking of coming here, but to correct now. That would provide certainty and would the people living here now? It is perfectly clear that ensure that it is in the correct form—I am sure that if their confidence has been undermined and they are the wording is not quite right, the noble and learned showing that by voting with their feet. They are leaving Lord can correct it. It would mean that it is done in jobs which are important to the whole of our society. good time and not at a rush after October or whenever The longer this debate goes on, having started from a everything else is settled. 1077 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1078
12.30 pm rights and obligations to be brought into our domestic As has been said, dealing with this now would also law. What we have at the present time is a joint report bed down the assurances that have been offered to from December of last year. We acknowledge that. these residents, some of whom have lived here for 20 or 30 years and to whom, as has been said by Lord Foulkes of Cumnock: It is not a treaty. others, we owe a higher degree of comfort than they currently have. The future of these citizens is in our Lord Keen of Elie: It is not yet a treaty, if I can hands. Do we want to give them that security now? As anticipate the noble Lord, Lord Foulkes, because the my noble friend Lord Liddle said, some of them are position of the EU has been, quite rightly, that there is living with high levels of anxiety. I agree with the no agreement until everything is agreed. This has been noble Lord, Lord Green, that most of this will be all a staged process. We believe that it is important that right, come the day, but these people are worried we were able to achieve the first stage and that we were because it is not in the Bill that they see going through able to achieve consensus. It is perhaps better to use Parliament. I cannot see why we have wait until Christmas the word “consensus” here rather than “agreement”, to put it on the statute book, which is when it would which can be confusing and sometimes misleading. happen. We can make a move now. The undertaking We have achieved consensus in a number of important on paper is that they could have access for eight years areas and, as we carry that forward, we proceed into to the ECJ, and I think we should do that. the negotiation of what will be an international treaty. As we have said before, once we have that international The noble and learned Lord, Lord Wallace of treaty, we can then draw down from the rights and Tankerness, said that this is a “no-brainer”. I have to obligations of that international treaty into domestic confess that, at that moment, my noble friend Lord law by virtue of the fact that we will bring forward a Beecham said to me that he thought the noble and withdrawal agreement Bill for scrutiny by this Parliament. learned Lord was describing the Government. However, I hope the Government do have brains and will find a Lord Adonis: Can the noble and learned Lord explain way to amend this Bill so that we do not have to to the House the difference between consensus and amend it once it is an Act, in order to make in law an agreement? assurance that has already been given. Lord Keen of Elie: One has to be careful in the The Advocate-General for Scotland (Lord Keen of matter of language. We are at one with regard to the Elie) (Con): My Lords, I am pleased to be able—I use first part of what we want to do in the context of that term advisedly—to respond to the issues raised in withdrawal, but we do not yet have an agreement that the context of these amendments. Given the scope of is binding in law with the other EU 27. For example, the contributions, I will perhaps begin by touching on going forward, and during the subsequent negotiations, one or two points that have been made by noble Lords the EU may come and go as to the terms of the joint in the debate. report. Indeed, we saw some indications of that when The noble Lord, Lord Foulkes, referred to the it came out with its draft recently, where issue was content of the joint report and quoted, among other taken with the way in which it expressed some aspects things, the phrase, of the joint report, particularly with regard to Northern Ireland. I appreciate that, if you want to construe the “the Agreement should also establish”. term “consensus” in that way, it involves “agreement”. The noble and learned Lord, Lord Wallace of Tankerness, The reason why I am trying to move away from did likewise, and referred to the passage about the “agreement” is that some see the word and infer that bestowal of rights that will come with the conclusion there is some legally binding concept. That is not yet of the withdrawal agreement. The noble Lord, Lord what we have. We have a joint report and, therefore, we Haskel, referred to Michel Barnier’s recent draft—quite have consensus. We are moving on to the overall accurately, if I may say so. The noble Baroness, Lady negotiations on what will ultimately be an international Ludford, pointed out that the European Parliament treaty. will have to agree to the terms of any withdrawal agreement. That is self-evident. Baroness Hayter of Kentish Town: We all hope that In other words, these matters are prospective. Why this agreement, or whatever word it is, is fixed soon, are they prospective? I do not want to be overly but it could be quite late. Wemay not have the withdrawal technical, and I do not believe that I will be, but we Bill until sometime next year and it could be that we begin with the duality principle of our law. That are due to leave a month or so afterwards. This part of means that we enter into international obligations at the Bill affects individuals more than businesses and the level of international law and they have no direct they will not know whether they can go to court until impact on our domestic law.For example, the withdrawal it is fixed—we may not get Royal Assent until a month agreement will be an international treaty entered into or two before we leave. Is that really a good way to by the Executive. We then implement or bring the treat individuals? rights and obligations of that international treaty into domestic law by way of domestic legislation of this Lord Keen of Elie: With respect to the noble Baroness, Parliament. That is the duality principle: you have businesses affect individuals, so it is not appropriate to international law and you have domestic law, and you try to draw a distinction between citizens’ rights and can only have the domestic law once you have the businesses in that context. The right to work involves international treaty, because it is from the international the right to maintain a business in various countries; you treaty rights and obligations that you allow the domestic cannot simply draw them apart in that way. As regards 1079 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1080 regards timing, of course we are concerned to ensure UK law, but surely the amendment addresses the issue that we achieve a withdrawal agreement sooner rather of the supremacy of European Union law, which than later. That is why these negotiations are under citizens of the EU currently rely on when they live in way. If perchance no agreement is achieved—and I am this country.I thought that the purpose of the amendment not aware of anyone who wishes this, although others was to make sure that those rights continued to exist will perhaps assert the contrary—we will have to look and would be clarified. That is all that we asking in the at how we then deal with matters in the absence of that Committee today. international agreement. Baroness Ludford: My Lords— Lord Wallace of Tankerness: I am grateful to the noble and learned Lord and I hear what he is saying about the duality principle. Can he conceive of any Lord Keen of Elie: With great respect to the noble circumstances in which the consensus reached between Baroness, I think that I must respond to my noble the United Kingdom and the European Union on the friend Lady McIntosh. way in which we should treat EU citizens in the United Again, that argument rather misses the point, because Kingdom and United Kingdom citizens in the EU what we have at the moment is a belief on the basis of would not be taken forward or would fall apart? Can the joint report that rights of EU citizens in the UK he see any circumstances where that might happen? may be referred to the Court of Justice of the European Union after Brexit, but that is not finalised; it is not Lord Keen of Elie: At the present time, no, but we yet contained in an international treaty agreement. are only now undertaking the detailed negotiation of the withdrawal agreement. It may be, for example, that Baroness Ludford: We have always understood that the situation of UK citizens in Europe will alter we cannot unilaterally guarantee in the context of during the course of those negotiations. It may be that what is now happening an agreement of two parties. the European Parliament will take a different view on What was said from the very beginning, immediately how the rights and interests of those UK citizens in after the referendum, was, “Give a unilateral guarantee Europe should be approached. The noble and learned and then we can with almost 100% certainty expect Lord will recall that, at an earlier stage, there were full reciprocity”. That was always what was suggested. some suggestions that the rights of UK citizens in Europe would be limited to the member state in which A noble Lord: Ha! they were resident at the time of exit. There are all sorts of possibilities and I am not going to indulge in an analysis of those possibilities—we are concerned Baroness Ludford: Yes, I would say to the sedentary with achieving certainty. We have achieved, by way of noble Lord. the joint report in December, an expression of joint opinion about where we are going, with regard not Lord Keen of Elie: With respect to the noble only to the rights of EU citizens in the United Kingdom Baroness—who I think invited me to drop all the mire; but also to the rights of UK citizens in the EU. Of I am not sure what I am supposed to do about that—the course we want to bring that in to the final withdrawal expectation of reciprocity is something that we hope agreement, in order that we can then draw it down and to achieve during the negotiation, and that is ongoing. implement it in domestic law. Lord Patten of Barnes (Con): My Lords— Lord Cormack: My noble and learned friend is being very honest with the Committee, but in a way that gives me some cause for alarm. He has made it Lord Keen of Elie: Perhaps I may make a little absolutely plain that, at the moment, there is no progress. guarantee. Would it still be possible—I believe that it The noble Baroness, Lady Ludford, also raised the would—for this Government to give and enact in question of settled status. We are intent on putting in Parliament a guarantee such as this House voted for at place provision for settled status, which can be done the time of the debates on the Article 50 Bill? pursuant to regulations made under the immigration legislation, in particular the Immigration Act 1971. Lord Keen of Elie: With respect, no, my Lords, We plan to open that application process on a voluntary because we are not in a position to guarantee that basis in late 2018 in order that people may begin on it. which has been arrived at in terms of the joint report. The noble Baroness suggested that it was inappropriate For example, we cannot by ourselves guarantee the to have an application process and went on to suggest rights of UK citizens in Europe. To try to dissect the a light-touch process. I suggest that we have an efficient joint report and say, “We’ll take one piece out and and effective process from the perspective both of the leave another piece in”, is not a way forward in the applicant and of those who have to process it. context of an ongoing international-level negotiation. The noble Baroness also raised the question of It is not the way in which this Government would arrivals during the implementation period and the proceed in that context. need during the implementation period for those arrivals to register. Again, the final outcome as to the rights Baroness McIntosh of Pickering: My noble and and obligations of those who arrive during the learned friend is talking in the context of this being implementation period will be the subject of negotiation. an international treaty that has to be transposed into We hope to take that forward in due course. 1081 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1082
12.45 pm Lord Keen of Elie: Gibraltar is an overseas territory Perhaps I may move on for a moment to a number whose people hold UK citizenship. However, if they of points that were raised about the Court of Justice do not retain citizenship of another EU country after of the European Union. The noble and learned Lord, Brexit, they will not be EU citizens. Lord Hope, referred to the recent decision of the Supreme Court in SM (Algeria). I have not seen Lord Foulkes of Cumnock: As I understand it, they the decision in the case, but he helpfully outlined the can get a Spanish passport if they so wish, although I background to it. It involved a situation in which an do not think that many of them do. Will they continue EU directive had been transposed into domestic law, to be citizens of the United Kingdom and will they be perhaps inelegantly or inaccurately, or perhaps both. eligible also to get EU citizenship? The position is that the Supreme Court was of course bound to refer to the Court of Justice of the European Union; it had no option. Going forward, however, our Lord Keen of Elie: This seems to confuse a number Supreme Court would be perfectly capable of addressing of different issues because the parallels are the same as the interpretation of the relevant domestic legislation those in the Republic of Ireland and Northern Ireland. and dealing with that itself. I would add one further If you are a UK citizen in Gibraltar and you are also point. The directive would not be incorporated into entitled to apply for and be granted citizenship of retained EU law by virtue of Clause 3, so if there was Spain, you will then hold dual nationality or dual a post-Brexit decision, the Supreme Court would be citizenship, and as a citizen of Spain, for as long as it construing the domestic legislation, not the terms of remains a member state of the EU, you will enjoy the the original directive, so there you could have a potential right to EU citizenship. It is no different from the difference of outcome. We acknowledge that and I position in Northern Ireland and the Republic of believe that I addressed the point the other evening. Ireland. In the same way, the noble Baroness, Lady Ludford—perhaps referring to something she may The question of Irish citizens has been raised. I have read in the Daily Mail—talked about people want to be a little clearer about that point. This is applying for citizenship of Malta in order to ensure something that predates the Belfast agreement but, to they can maintain EU citizenship. This is how it put it into context, the position is not that Northern happens, but the fundamental point is that you cannot Ireland citizens will remain citizens of the European be a citizen of the EU unless you are a citizen of a Union. The position is this: since 1921, although I member state. That is written into the treaties. may be corrected on that, but certainly since the Belfast agreement, certain residents of Northern Ireland It may appear—and it will almost certainly appear are entitled to apply for and be granted citizenship of to the Chief Whip—that I have digressed slightly from the Irish Republic and therefore to hold a passport some of the amendments; he will be watching. I just from the Irish Republic, although not all do, for seek to touch on some of them. I hope I covered in reasons that we do not need to go into in any detail. my opening remarks some of the points made. Where a citizen or resident of Northern Ireland also Amendments 160 and 170 were tabled by the noble holds a passport of the Republic of Ireland, post Lord, Lord Adonis, and Amendment 202 by the noble Brexit, in their capacity as a citizen of the Republic of Baroness, Lady Smith of Newnham. Unfortunately, Ireland they will retain their EU citizenship. Let us be she was not here to speak to it, but it was referred to. clear that EU citizenship is linked directly to citizenship As I have indicated, at the end of the day, we will have of a member state. to conclude the negotiations in respect of the withdrawal agreement treaty and then draw it down into our domestic law. Tying Clause 9 to a particular outcome Lord Wigley: I am grateful to the noble and learned is not going to assist that. Lord and I am following what he is saying. Is he in fact ThenobleEarl,LordClancarty,movedAmendment210. confirming that there will be two classes of citizen in Again, I hope I have set out the Government’s position Northern Ireland: those who hold Irish citizenship as on this. We appreciate what we have achieved by way of well and will be able, if there is a border, to cross it the joint report, and we go on to the detailed negotiations totally freely and thus into the rest of Europe, and a in the hope it will effectively mean that we can confirm second class of UK citizens in Northern Ireland who in domestic law not only the rights of EU citizens in will not be able to do so? the United Kingdom, but the right of UK citizens in the EU. Lord Keen of Elie: No, my Lords, there will not be The noble Lord, Lord Haskel, moved Amendment 211, two classes of citizens. Let us take a simple example. If which details a requirement to keep equivalence with I hold USA citizenship and UK citizenship, I can pass the EU on rights and protections.Again, this is prospective. between the UK and the USA because I am a citizen We are addressing it in the course of negotiations and of both countries. If I am a citizen of the UK and a we hope to achieve it in many respects. In my view and citizen of the Republic of Ireland, I can pass between in the view of the Government, it would not be the two countries because I am a citizen of each state. appropriate to bring this into our domestic law. It is not a case of classification; it is simply a matter of Finally, we have Amendments 49 and 52, which I status. hope I have gone some way to addressing so far. The Bill aims to provide a stable and certain domestic Lord Foulkes of Cumnock: Will the noble and learned statute book on exit day. That is its point, irrespective Lord clarify a point raised earlier by the noble Lord, of the result of the negotiations and of any final Lord Wigley? What is the position of citizens in Gibraltar? agreement with the EU. Of course, once we achieve a 1083 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1084 final agreement, we fully appreciate that we are going Lord Foulkes of Cumnock: My Lords, one of my to have to draw it down into our domestic law.Parliament comrades, if I may use that word in this place, commented will have an opportunity to scrutinise it. that I was unduly brief in my introduction—or perhaps it was unusually brief; it was one or the other. That Lord Liddle: If, as I am sure we both do not want, was because I stuck precisely to the terms of my the withdrawal agreement is not reached, what then amendment. The debate, however, has gone much happens to EU citizens’ rights? Do we not have the wider than that. Wehave heard some powerful, passionate opportunity now to guarantee them, whatever the pleas on behalf of the rights of European Union case? citizens. We have heard them from colleagues on all sides of the House, and it is important to note that it is Lord Keen of Elie: With respect, if there were no not just the opposition parties arguing this: support agreement, then it would be for this sovereign Parliament has come from the Cross Benches and from the to decide what it was going to do about that in Conservative Benches. domestic law. We have already made clear expressions One of the ironies is that if European Union citizens of intent as regards their status. There is an issue here has been given the right to vote in the referendum—they of time and place. While I understand the expressions are taxpayers: “no taxation without representation”—as of concern that we have heard from across the House, they were in the Scottish referendum, we would not this is not the time and this Bill is not the place for now be going through this tortuous procedure. We these amendments. In these circumstances, I invite would be getting on with running the country, looking noble Lords not to press them. after education, health, justice and all the things we should be doing as the sovereign Parliament. Lord Patten of Barnes: I wonder if I could put one My noble friend Lady Prosser put it very well: the point to the noble and learned Lord before he sits reputation of the United Kingdom is at stake in all the down. As ever, what he said was intellectually lucid matters that we are looking at today. The arguments and stimulating. I just want to jog back to what he said put forward by my colleagues on behalf of all the about consensus and agreement. It is a very important amendments in the group were very powerful. distinction and I am sure it will be interesting to all his ministerial colleagues in the Foreign and Commonwealth Lord Bilimoria (CB): I thank the noble Lord for Office and to diplomats around the world. How does giving way. Could he add that European Union citizens this distinction translate into other languages? Does will be allowed to vote in the forthcoming council he think that our interlocutors in Brussels regard what elections in May? we appeared to accept in December as a consensus or as an agreement? Does he think that they will now be Lord Foulkes of Cumnock: Indeed, and as I understand quite relaxed if we walk away from some of what was it, if I read the Evening Standard right, they are going a consensus because it was not an agreement? I should to send a very strong message as far as London is like to be a little clearer on this. It is going to be very concerned about what they think of this Government. important as we go through this debate when we are I conclude by saying that I wish I was learned as told that things are part of a consensus and not part of well as noble, like the noble and learned Lord, Lord an agreement. If, with his usual intellectual authority, Keen, because I would then be able to understand he could explain that to naive, one-time make-believe some of the detail rather more precisely. diplomats like me, I should be grateful. Lord Adonis: Before my noble friend concludes, Lord Keen of Elie: I am most obliged to the noble does he share my concern about what the Minister Lord, if only for the compliment. As I sought to said about the difference between “consensus” and explain, we have the joint report and we have embraced “agreement”? Does he agree that that is quite a significant it. We go on now to the next stage of negotiation. I statement on the part of the Government in the course used the term “consensus”, perhaps ill advisedly, to of this debate? The only point in making the distinction, underline the point that we have not yet signed a as I understand it, is that the Government do not binding agreement in international law—we have not regard themselves as fully committed to the terms of yet achieved a treaty. We strive to achieve a treaty, and the “agreement” of last December. in striving to achieve that treaty we have in mind what we have already achieved in the joint report. But we Lord Keen of Elie: It is unusual for me to intervene, acknowledge, as the EU itself has noted, that we have but I feel that if the noble Lord is going to make not yet placed that in the form of a treaty that is statements, he should make them accurately. If he is binding in international law. Until we do that, we do going to represent what a Minister has said, he should not draw it down into domestic law. do so accurately. The distinction I drew was between an agreement that was now binding in international Lord Adonis: Does the noble and learned Lord law and an agreement that was not now binding in envisage that Her Majesty’s Government might resile international law. I hope the noble Lord’s recollection from any of the commitments they gave in the consensus coincides with mine. If it does not, could he perhaps they reached at the end of last year? consult Hansard?
Lord Keen of Elie: I do not even imagine that Her Lord Foulkes of Cumnock: It is a very interesting Majesty’s Government would wish to do anything of point, and the noble Lord, Lord Patten, highlighted it the sort. in his intervention. I wish that while he was speaking 1085 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1086
[LORD FOULKES OF CUMNOCK] Lord Foulkes of Cumnock: I think now it would be I had been able to translate “consensus”and “agreement” appropriate for me to beg leave to withdraw my into Spanish, French, German, Italian, Portuguese, amendment. Welsh and so on to see whether there is a coincidence between one and the other. No doubt that is something Amendment 49 withdrawn. that we can return to. The Minister finished by saying that there is a time Amendment 50 not moved. and a place, and that this is not the right time and not the right place for these amendments. There will be many more times and this will be the right place, and I Amendment 51 look forward to speaking to the rights of European— Moved by Lord Bassam of Brighton 51: Clause 6, page 3, line 33, at end insert “subject to any 1 pm agreement under subsection (6C)” Lord Kerr of Kinlochard (CB): Does the noble Lord agree that although on the legalities we have heard an Lord Bassam of Brighton (Lab): My Lords, I rather extremely lucid explanation that in my view nobody hope that the modest amendments in my name do not could disagree with, delivered with all the noble and take the House two hours to deliberate over. They learned Lord’s customary charm, what we have not focus on a narrow set of issues relating to pending heard is any indication that anybody is aware of the cases. reality in the outside world: that these people are Amendment 62 would allow our domestic courts, choosing to go home? The people we need are going subject to the terms of the withdrawal or transitional back because the Government are not giving them an agreement, to refer cases to the CJEU after exit day if assurance. These people believe that we agreed something the course of action arose before exit day.Amendment 61 in November.What we are seeing now in this intellectually would require the Government to obtain from the fascinating legal debate is a total betrayal of their belief CJEU and then publish a list of pending cases referred that we had agreed something. The pace at which people to domestic courts before exit day. Amendment 64 move away from this country—people who we need—will changes the definition of retained EU case law to speed up if we do not get this right. include case law relating to pending cases referred to the CJEU before exit day. Lord Foulkes of Cumnock: I am obliged to the These amendments were drawn from the Constitution noble Lord, Lord Kerr of Kinlochard, for pointing Committee’s excellent report on the Bill and essentially out that although the Minister has all the legality aim to deal with two issues: first, pending cases in behind him, perhaps his argument is lacking in humanity. domestic courts that might have been referred to the It is humanity that the European Union citizens deserve, CJEU and, secondly, pending cases already lodged not the legality that we have heard. with the CJEU before exit day. In the first instance I I was about to conclude by saying that this may not am really asking for the Government’s assurance that, be the right time but it is certainly the right place. I in any withdrawal or transition agreement, they will look forward to returning to this, and I know that seek to clarify whether domestic courts can continue many noble Lords who have spoken do also, to argue to make reference to the CJEU in relation to cases that and to fight for the rights of not just UK citizens on began before exit day. I can see that there has to be a the continent, who matter as well, but the European cut-off point for references but it is the timing of that Union citizens who have given so much to this country point which concerns me. What criteria will Ministers over the years and continue to do so. apply and how will these be written into the agreement in such a way as to guarantee, and not undermine, procedural fairness and access to justice? Lord Mackay of Clashfern: It is worth pointing out that these citizens have existing rights by law in this It may seem that this is a small or insignificant country, and that will remain the case until these matter but, given the wide range of issues that the provisions are repealed, if and when they are. court considers, I think not. After all, it looks at everything from trademarks to intellectual property rights, workplace rights and even the distribution of Lord Foulkes of Cumnock: The noble and learned EU funds. Given that cases started before the Prime Lord is a distinguished lawyer and had great distinction Minister triggered Article 50 are likely to be treated as the Lord Chancellor. Perhaps he can explain to the differently from those which followed it, it is surely European Union citizens in Scotland, where he and I important that principles of fairness and consistency both live, why they were allowed to vote in the Scottish enter into any agreement which the Government can referendum but not in the European Union referendum. sign. Many of them have asked me but I do not have the The second type of pending cases, dealt with in intellect or ability to answer them; perhaps the noble Amendment 64, will be those that are already with the and learned Lord can. CJEU. In another place, the Solicitor-General argued that these cases would simply continue. That is fine as Lord Mackay of Clashfern: That does not appear to far as it goes but, as the Constitution Committee be entirely relevant to the present debate and it is a bit pointed out, the Government intend to provide for late anyway. I had very little to do with the formulation these pending cases to be covered in the withdrawal of the franchise. agreement and implementation Bill. But what happens 1087 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1088 to those cases if there is no deal? Would it not make place referred to the importance of knowing, at least sense to have a saving provision in the Bill saying as I read his remarks, what those cases are. simply that any case that is with the CJEU is determined It seems that there has to be a justification, although to be treated as contributing to pre-exit case law, and I can see none, for depriving litigants and our courts in turn forms part of retained EU case law? of the ability to refer cases to the CJEU. It is important The Constitution Committee’s proposal that the that noble Lords are clear on the fact that that does Government should produce a list of cases on exit day not mean sending cases to the CJEU for it to decide; it that would be treated in this way made very good is for that court to determine questions of interpretation, sense. To my way of thinking, that is a logical way of as the treaty currently provides,although the interpretation handling quite a complex set of legal issues, which are given may in fact then decide the case. Our own courts obviously well beyond my sort of competence as a would then take the interpretation provided by the non-lawyer. However, I hope that the Minister can European court and apply it to the case before them. satisfy my curiosity and set out how the Government I look forward to hearing what the noble Baroness intend to proceed. I also hope that he can satisfy the or the noble and learned Lord, depending on who will Constitution Committee, which I thought had a rather respond to the debate—forgive me, of course it is the neat solution to the problem. Pending cases are of noble Baroness the Minister—will say to my noble great value and will be of great interest to colleagues. I friend. am hopeful that the Government can satisfy my simple concerns and provide us with an explanation that works. I fear that we will otherwise end up with Baroness Goldie (Con): My Lords, this may have something of a case law muddle. I beg to move. been a short debate but it concerns a significant issue, and I am grateful to the noble Lord, Lord Bassam, Lord Goldsmith (Lab): My noble friend is absolutely and the noble and learned Lord, Lord Goldsmith, for right that this is not a small or insignificant matter. their contributions. I am aware that a key issue of It is an important one with rule-of-law implications. interest in this Committee is how pending cases before The starting point, as he explained, is his proposed the European courts will be resolved, and I hope that I Amendment 62 which, if agreed, would add a new can respond relatively briefly to these amendments in paragraph (6C), the purpose of which would be to the name of the noble Lord, Lord Bassam. encourage the negotiation of an agreement that cases As was acknowledged in their contributions, the can continue to be referred to the CJEU by our own Government have been clear regarding their approach courts after exit day. That would relate to new cases to cases which have been referred to the European where the cause of action arose prior to exit day. This courts before exit day and we have made good progress is logical because the important point is about whether in achieving this outcome in our negotiations with the the full remedies currently available to litigants, potential EU. As such, I applaud the similar concern expressed litigants and, importantly, our courts remain until we by the noble Lord that there should be legal certainty leave, while the law of the EU remains in place. in this area. However, as I have said previously, and Of course, being able to refer such cases depends on indeed as my ministerial colleagues have also said, the an agreement, the very agreement that my noble friend’s purpose of this Bill is to provide a functioning statute amendment would make it an objective to negotiate. book on the day we leave the EU, irrespective of the We will not be able to refer cases to the court in result of the negotiations on any final agreement with Luxembourg after exit day, except by agreement with the EU. the EU in such an agreement. But he is also right that The Government have been clear throughout the there is a risk—although we hope very much that it passage of the Bill through this House and the other will not happen—that if we end up without a withdrawal place that it is not intended in any way to prejudge the agreement, there would need to be legislation enabling negotiations or to predict an agreement between the this to continue to take place. So the principle of the UK and the EU on their future relationship. For that amendments seems entirely right, and he is right to say reason, I would submit that the Bill is not a suitable that this was dealt with by the Constitution Committee vehicle for such amendments to take effect. Future at paragraphs 150 and 153 of its excellent report. legislation will be needed to implement the withdrawal Perhaps I may refer to what the committee said in agreement, including the treatment of cases that are paragraph 153, having made the point that my noble pending before the European Court of Justice. That friend has identified: legislation will need to be informed by the precise terms of the agreement. The Government have already “We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) committed to introducing a withdrawal agreement Bill. We further recommend that rulings on cases that have been and an implementation Bill, but let me try to clarify a referred to the CJEU before exit day are treated as pre-exit case couple of the specific points raised. law—such that they form part of ‘retained EU case law’—and I think it was the noble and learned Lord, Lord that the Government publishes, on exit day, a list of all such Goldsmith, who in effect asked about the status of a cases”. case that has been referred to the European court The middle part of that, on what the significance is of, before exit, but does not proceed to a judgment until “rulings on cases that have been referred … before exit day”, after then. The intention is that a case which starts and is dealt with in a later amendment. But, as he has said, has been referred to that court before exit would the requirement that the Government should publish proceed to a judgment, which our courts would be a list of all such cases is dealt with in these amendments. bound by. That is the intention but—let me make this He is right to say that the Solicitor-General in another clear—this is pending an agreement with the EU about 1089 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1090
[BARONESS GOLDIE] in the ether will be left with the degree of uncertainty these issues. In relation to the request of the noble that she has suggested may be the case. The fact that Lord, Lord Bassam, for a list my understanding is the legislation that is going to cover this point will be that, at the moment, cases registered at the Court of left until the final Bill—the transition and withdrawal Justice of the European Union are made available Bill or whatever it is finally called—does not satisfy online, so after our withdrawal we will have certainty me greatly. I think that will leave uncertainty for as to how many pending UK cases have been referred litigants in cases that could be incredibly complicated. to the court. I am rather worried that this issue is going to get I apologise to the noble Lord and the noble and caught up in the Government’s general dislike for the learned Lord if I have not specifically addressed some CJEU. My recollection is that this is one of Theresa of their concerns. The difficulty, as was made clear in May’s red lines: she does not like the CJEU and December, is that there is a clear statement of intention therefore part of taking back control is getting rid of made in good faith by the Government, surrounding it. We have got news for the Minister dealing with this: heads of agreement that have been achieved between it is going to take the UK some time to extract itself the United Kingdom and the EU. But we need to from CJEU processes. The quicker the Government continue with our negotiations to fine tune that, and wake up to that fact, the easier it will be for us all to hopefully then reduce it all to the final agreement. But deal with it. In becoming more realistic in their approach I cannot pre-empt what may be in the final agreement to the court, the Government will give some greater and I hope that, in these circumstances, the noble certainty as to how we intend to proceed in future. Lord, Lord Bassam, will feel able to withdraw his While I am happy to withdraw my amendment for amendment. the moment, I may come back to this at a later stage, because our legal system and litigants require greater 1.15 pm certainty. This is not necessarily the small issue I dreamed it might be when I came across it in the Lord Goldsmith: I apologise for not having properly Constitution Committee’s excellent report. I am grateful identified the noble Baroness, Lady Goldie, as the for the debate we have had, but I am not so grateful for Minister responding to this debate. I wonder whether the answer. We will probably require a bit more from she will allow me to just press one question. She has the Minister at a later stage. I beg leave to withdraw very helpfully identified the position in relation to my amendment. pending cases that have started but for which rulings have not been given at the date of exit. These amendments Amendment 51 withdrawn. include an additional category of cases, as I understand it, such as cases where the cause of action has arisen Amendments 52 to 54 not moved. prior to exit: for example, where EU law is in place and there is an issue of EU law that a litigant wants to raise but they have not actually started the case at the moment we leave; or where the case has started but a Amendment 55 reference has not been made at that stage, because the Moved by Lord Pannick court does not make a reference until it comes to a particular point in the proceedings. In line with her 55: Clause 6, page 3, line 34, leave out subsection (2) and helpful answer in relation to the category of cases that insert— are pending in the CJEU at the date of exit, does she “(2) A court or tribunal may regard the decisions of the think the same principle ought to apply, subject to European Court made on or after exit day to be agreement, to cases where the cause of action has persuasive.” arisen before exit or the case has started but not got any further than that? Could she help on that point? Lord Pannick (CB): My Lords, the two amendments in this group address the important question of the weight, if any, to be given to the judgments of the Baroness Goldie: I thank the noble and learned Court of Justice of the European Union which are Lord for his point, but I am afraid my response is delivered after exit day. Amendment 55 is in the names going to be slightly less encouraging for him. The of the noble Lords, Lord Foulkes of Cumnock and position of the Government is that we do not agree Lord Adonis. Amendment 56 is in my name and those that new cases should be initiated post exit, even when of the noble and learned Lords, Lord Goldsmith and these refer to pre-exit causes of action, because it Lord Wallace of Tankerness, and the noble Viscount, would lead to an uncertain environment. It would be Lord Hailsham. impossible to predict for how long the European Court of Justice would continue to issue judgments in respect Amendment 56 would implement the recommendation of the UK. That, in the opinion of the Government, of your Lordships’Constitution Committee at paragraph would strike at the underlying purpose of this Bill, 142 of our report on the Bill. After exit day, there is no which is to try to achieve a snapshot—to use that dispute that our courts will make their own judgments phrase again—as at the date of exit. on retained EU law.They will not be bound by judgments given by the court of justice after exit day. While judgments given before exit day will bind our courts Lord Bassam of Brighton: I am grateful to the up to the level of the Supreme Court, those given after Minister for her response. She partly satisfied my exit day will not be binding. But our judges will wish concern, but not wholly. I do not really think it is to look at the judgments of the court of justice in satisfactory that the cases that will be floating around Luxembourg delivered after exit day. That is not just 1091 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1092 because our judges are always interested, and rightly of any such post-exit day European court judgment, so, in seeing how courts in other jurisdictions address the domestic court should have regard to the terms of the same or similar issues. The connection here is any agreement that is reached between the UK and the much stronger. The retained EU law, which our courts EU which it considers to be relevant. The terms of the will be interpreting, owes its origins to the institutions withdrawal agreement, if and when approved by of the EU and there may be very good reasons for our Parliament, will identify the relationship between the courts looking carefully at how the court of justice has UK and the EU post exit day, and that will give interpreted after exit day the same or a similar provision. considerable guidance to the courts. There are three problems with Clause 6(2) as currently I emphasise, however, that at all times under drafted. First, it begins in a negative way by stating Amendment 56 and indeed under Amendment 55, it that a domestic court “need not have regard”to judgments will be for the domestic court to decide on the significance, delivered by the court of justice after exit day. That if any, of the Luxembourg judgment. There is no default position is unhelpful because it may be understood dispute over the fact that our judges will remain in to suggest that our judges should not normally have charge in relation to post-exit day judgments. However, any regard to post-exit day judgments of the court of Amendment 56 would provide the guidance that they justice. are seeking and which, I suggest, they are entitled to expect. I beg to move. Secondly, the end of Clause 6(2) allows the courts here to have regard to post-exit day judgments of the European court only if our courts consider it “appropriate to do so”. But judges do not look at foreign judgments Lord Foulkes of Cumnock: My Lords, there is little because it is appropriate to do so; they look abroad for to add to the excellent introduction made to these assistance because the foreign judgment is relevant to amendments by the noble Lord, Lord Pannick, except the issue that they are deciding. The terminology to say that decisions of the other courts which currently matters here. The use of “appropriate”wrongly suggests have persuasive authority include those of the Judicial that our court will be making a policy choice to have Committee of the Privy Council, decisions of higher-level regard to a post-exit day judgment from Luxembourg. foreign courts, especially in the Commonwealth and Senior members of the judiciary have understandably other similar jurisdictions, and one that I have a expressed concern that if Clause 6(2) is left in its particular interest in, being a member of the Parliamentary current form, the courts will inevitably be criticised for Assembly of the Council of Europe; namely, decisions making a policy choice in this context. of the European Court of Human Rights, which under the Human Rights Act 1998 must be taken into I should make it clear that of course I do not speak account by UK courts. It is right that the European for the judiciary, but I do speak to them. I can tell the Court of Justice should have a similar role and persuasive Committee that many senior judges are very concerned powers. about the content of Clause 6(2). Paragraphs 134 and 135 of the report of your Lordships’ Constitution Committee record the evidence that was given by the 1.30 pm noble and learned Baroness, Lady Hale, the President of the Supreme Court, and her predecessor, the noble Lord Neuberger of Abbotsbury (CB): My Lords, and learned Lord, Lord Neuberger of Abbotsbury, Clause 6 is concerned with the issue of how the large who I am pleased to see in his place today. The body of retained EU law is to be interpreted by judges. concern of the senior judiciary is not that judges It is an important issue because it is a fundamental should be shielded from criticism or that they are not principle that the law should be clear and consistent, tough enough to withstand it. The point is that confidence but also because the topic could lead to ill-informed in the rule of law is undermined if judges are seen to political and media attacks on the judges, to which the be taking sensitive policy decisions that are for Parliament noble Lord, Lord Pannick, has referred, which would to make. Clause 6 therefore needs to make it much undermine the rule of law at home, the reputation of clearer that although our judges are certainly not English law abroad and the consequential attraction going to be bound by Luxembourg judgments handed of London as a global dispute resolution centre. Your down after exit day, Parliament does intend our judges Lordships will no doubt recall one such Brexit-related to have regard to judgments of that court given after attack on the judiciary that received worldwide publicity. exit day where they consider that those judgments are Clause 6 should be worded with a view to clarifying relevant to the issues before our courts. the law and minimising the risk of such attacks. Quite apart from that, I suggest that we need to think The third defect of Clause 6(2) as currently drafted through the implications for the UK legal system and is that it suggests that the same principles apply to its attraction to others when it comes to developing decisions of “another EU entity or the EU” itself. I am our own system of retained EU law. I cannot pretend doubtful that there is any need to mention other EU that this issue is easy to resolve but it is an appropriate entities or the EU itself, or certainly to compare them opportunity to explain the context from a judicial with the European court itself. perspective. Amendment 56 seeks to address the issues in a At the moment, at any rate, the Government envisage manner which gives much clearer guidance to our that post-Brexit the UK courts will, at least in general, courts. It would make it clear that our judges must no longer be subject to the jurisdiction of the ECJ and have regard to a post-exit day judgment of the European so will be free to interpret EU law as they see fit. This court if the domestic court considers it relevant to do gives rise to two closely related problems. The first is: so. It would also add that in deciding the significance what principles of interpretation are to be applied to 1093 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1094
[LORD NEUBERGER OF ABBOTSBURY] As the noble Lord, Lord Pannick, has said, Clause 6(2) that retained EU law? Secondly, what use can be made in its present form appears to indicate that there is of ECJ case law when carrying out that interpretation a presumption against following decisions of the exercise? ECJ but that judges can follow such judgments in this On the first problem, unlike normal UK legislation, country if they think it appropriate. That would suggest, which is generally tightly drawn, EU legislation is as again he says, that judges would be expected to relatively loosely drafted, leaving the judges to resolve make decisions that were essentially political—in ambiguities and fill gaps. Some EU legislation is of particular, whether to align the UK with an ECJ course drafted on the basis that it will be interpreted interpretation against the statutory presumption for to give effect to fundamental EU aims, such as ever policy-type reasons, or to depart from the ECJ closer union and the strengthening of the internal interpretation. market, which may well be no longer relevant to the Given that pre-Brexit decisions of the ECJ are, UK after Brexit. In providing that general principles sensibly,to be determinative on questions of interpretation, of interpretation set out in pre-Brexit ECJ decisions both consistency of approach and the experience of will be applied by UK judges after Brexit, Clause 6(3) the ECJ as interpreters of EU law support the notion in its present form none the less has the effect of that post-Brexit ECJ decisions should be given the maintaining all those interpretive principles, although same effect, at least where the retained legislation has by virtue of Clause 6(5) it would be open to the not been changed. However, if this is not to be the Supreme Court to depart from such decisions. policy, rather than leaving any new policy to be worked The second, related problem is the use of ECJ case out by the courts, which is the effect of Clause 6(2), law. In her speech last week, the Prime Minister said there is obvious force in the notion that Parliament that, should clearly state what the new policy is. Similarly, “where appropriate, our courts will continue to look at the ECJ’s Clause 6(4) is questionable in providing that the Supreme judgments, as they do for the appropriate jurisprudence of other Court should decide whether to adhere to pre-Brexit countries’ courts”, ECJ decisions or whether new principles of interpretation and added that, should apply, because principles to sustain ever closer union or single market freedoms are no longer relevant “if, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to interpretative considerations in the UK. look at the appropriate ECJ judgments so that we both interpret There are various possible solutions that need careful those laws consistently”. consideration, given that this issue is so important, That sounds fine but things are not quite so and I shall present some examples.First, the interpretative straightforward. The Bill sensibly provides that the approach should follow a policy decision set out either UK courts must follow the pre-Brexit decisions of the in the amendments to be made to EU legislation under ECJ although, as I have said, Clause 6(4) states that powers granted in the Bill or in the final agreement the Supreme Court can depart from those decisions in reached between the UK and the EU, and given formal the same circumstances as it can depart from its own parliamentary approval. In relation to issues not covered decisions. By contrast, where there is a post-Brexit by such arrangements, it could be provided that retained ECJ decision, as the noble Lord, Lord Pannick, has EU law was to be interpreted without any departure explained, Clause 6(2) provides that a court, from existing principles of interpretation. If that were “need not have regard to”, not an acceptable solution, the courts could be given such a decision, more specific assistance as to how to interpret legislation, in particular whether or not to continue alignment. “but may do so if it considers it appropriate”. Secondly,as some amendments before your Lordships’ That gives precious little guidance to a judge—indeed, House today indicate, including those that were moved as I will mention later, possibly unhelpful guidance just now, post-Brexit decisions of the ECJ could be from the point of view of the judiciary’s reputation—as regarded as persuasive or it could be provided that to how to approach post-Brexit ECJ decisions. UK courts must have regard to them if relevant, and It has been suggested that a judge could be assisted that in determining relevance the court should have by the approach that courts have taken when looking regard to any relevant agreement between the EU and for guidance from decisions of courts in other jurisdictions. the UK. Such formulations would probably be better However, courts in this country normally do this when than the present Clause 6(2) but they do not address looking for general principles or when considering the all the perceived problems. scope of human rights conventions. That is not really a sound analogy because Clause 6(2) would normally Thirdly, Clause 6(2) could be omitted altogether. At apply to a case where a judge was looking at an ECJ the moment, it seems to me that, with respect, the decision on the interpretation of specific legislation. It present clause is worse than nothing from the judicial has also been suggested that a judge could get help perspective. First, it creates the presumption to which from cases that have stressed the desirability of UK the noble Lord, Lord Pannick, has referred, and secondly courts taking account of decisions of overseas courts it uses the word “appropriate”, which suggests a policy so as to reach a uniform interpretation, but that does role for the judges. That would leave them more exposed not provide a real analogy either because EU law is in both what they do and what they may be perceived unlike those conventions: it is a law of a union from to be doing. which the UK will have departed because it does not Fourthly, more specific interpretative guidance could want to have such uniformity, although accepting that be given, bearing in mind the particular circumstances it may be desirable in some cases. of Brexit and the particular way in which EU legislation 1095 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1096 is crafted, so that decisions on differing political issues Lord Hope of Craighead: My Lords, I hesitate to are not left to the judges. The argument that telling follow the very careful analysis of the noble and judges how to interpret the law could be a precedent learned Lord, Lord Neuberger, but perhaps I can add for ordinary parliamentary legislation can arguably at a few words. We are all trying to find the best way of least be met by the point that this is a unique circumstance. expressing in clear and simple language, in statutory It would also have the advantage of providing clarity form, the guidance that the courts and tribunals will for the UK’srelationship, including its trading relationship, need about the interpretation of retained EU law. In with the other states of Europe and elsewhere. particular, Clause 3 is about direct EU legislation I hope these issues and the choices they reflect will which we will be receiving in the language of the be subject to proper scrutiny and discussion. The right directives and regulations to which this clause refers. solution will not only protect the independence of the The position is fairly clear about judgments or judiciary but will demonstrate that decisions of a decisions of the CJEU before exit day. That is retained political nature should not be left to judges, and it will EU case law which is referred to in Clause 6(3) and we help to achieve the legal clarity that is so important to are not in any difficulty on that; rather, it is what to do the rule of law and to the future of this country’s about the future. Had it not been for the concerns trading and other relationships with the EU and other expressed by the noble and learned Baroness, Lady states. Hale, and the noble and learned Lord, Lord Neuberger, As I hope I have indicated, I accept that there are about the risk of being criticised for being drawn into no perfect answers.That is unsurprising. The incorporation areas of policy, I would have been content to see of pre-Brexit—but only pre-Brexit—EU law into UK Clause 6(2) deleted and to rely simply on the normal, law requires a sort of multidimensional Procrustean traditional way in which comparative law is applied by solution. In so far as the Bill requires the judges to courts up and down the country. I have been doing perform the role of Procrustes, Parliament should do this ever since I started sitting as a judge. Of course, all that it can to ensure that the judges do not suffer there are examples outside the particular area we are the fate of Procrustes. dealing with here of conventions to which we are a party and which need to be interpreted. One looks at Lord Adonis: The noble and learned Lord has made other jurisdictions to see how the language of a convention a number of strong statements to the Committee is interpreted and applied. This is a normal part of our about the impact, as he regards it, of Clause 6(2) on jurisprudence and it would have been enough. However, judicial independence and the reputation of the judiciary. I recognise the force of the points made in their In particular he objects, as did the noble Lord, Lord evidence to the Constitution Committee and today by Pannick, to giving the courts the discretion to reach a the noble and learned Lord, Lord Neuberger, and I judgment on whether it is appropriate to have regard think that we have to do something to give the guidance to the European court. Proposed subsection (2B) for which they are looking. in Amendment 56 in the name of the noble Lord, One should also bear in mind that it will be some Lord Pannick, states: time before the Supreme Court handles cases of this “In determining the significance of any judgment … the court kind. We are talking about tribunals as well as courts or tribunal must have regard to the terms of any agreement at every level. I am sure that when the Supreme Court between the United Kingdom and the EU which it considers gets hold of the thing, it will be astute enough to give relevant”. the kind of guidance that one normally gets from the To a layman, this clearly involves an exercise of judicial higher courts, but we have to look at the beginning of discretion. So why is the judicial discretion in the process. subsection (2B) set out in Amendment 56 potentially On the table at the moment we have Clause 6(2) as any less damaging and likely to be conducive to it stands and Amendment 56 from the noble Lord, controversy than the existing Clause 6(2)? Lord Pannick. I hope that the noble Lord will forgive me when I say that I think his amendment is like the Lord Neuberger of Abbotsbury: I suspect that the curate’s egg. There are bits of it which I rather like and noble Lord, Lord Pannick, whose amendment it is, is bits which I would prefer to drop, and the same goes better placed to answer. My answer would be twofold. for Clause 6(2). I suggest an amalgamation of the best First, it specifically tells the judge what to have regard bits of the amendment in the name of the noble Lord, to; it does not leave it completely open. Secondly, it Lord Pannick, and the best bits of Clause 6(2). uses a rather more familiar expression, “relevant”. A judge will be able to say, “When construing this, I have 1.45 pm looked at the document”—namely,the agreement referred Viscount Hailsham (Con): Cherry-picking. to in subsection (2B)—“to which I am required to have regard. In my view, it tells me to do this or that”. Lord Hope of Craighead: Not at all. It is curing the It is specific guidance, albeit indirect specific guidance, curate’s egg and producing an acceptable piece of through the agreement referred to in subsection (2B), guidance which has the best bits of both, which is whereas the term “appropriate” leaves it completely what we need to look for. I am not cherry-picking; open for the judge to decide whether it is appropriate, I am analysing. if I may use that word, to consider matters that he or Viscount Hailsham: Having your cake and eating it. she is not specifically told to take into account. The judge has to make the decision, “Do I think about x; Lord Hope of Craighead: No, this is analysis. Let do I take that into account?” Here, the judge knows me explain what I would like to do. what he or she has to take into account because it is I quite like the words of Clause 6(2) as it stands: spelled out; namely, the agreement. “A court or tribunal need not have regard to”, 1097 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1098
[LORD HOPE OF CRAIGHEAD] Lord Faulks (Con): My Lords, I rather agree that a judgment or decision given by the European Court “appropriate” is not particularly desirable. I wonder on or after the exit day because that fits very well with whether putting “helpful” in Clause 6(2) would more the way we are looking at the position before exit day. accurately reflect the way that courts generally consider It is certainly true that it is a negative way of putting it, law from other jurisdictions in developing the law—one but I regard it as a helpful transition to the new always invites courts if they find a particular decision situation. However, I do not like the remainder of to be helpful—whereas I understand that “appropriate” Clause 6(2) for the very reasons that the noble Lord, is considered perhaps to have too much of a political Lord Pannick, explained. That is where I would like to charge. However, I do not wholly understand why the bring in the passages from the latter part of his formula, noble Lord, Lord Pannick, finds the initial words of which are that a court or tribunal may have regard to Clause 6(2) rather offensive, where it says: such judgments or decisions where it considers them “A court or tribunal need not have regard”. relevant for the proper interpretation of retained EU law. All that is saying is that they are not obliged to have regard—I do not think it says any more. I personally I would take out “appropriate” from Clause 6(2), read no particular charge in it, and I think that the for reasons that have been referred to already, and noble and learned Lord, Lord Hope, would agree. would leave out the early part of proposed new subsection (2A) in Amendment 56 where “must” is There is something of an irony about these used. I would prefer “may” to “must”, leaving it to the amendments, in that the only way to have real certainty court to make its own decision regarding whether the would be to tell the court either to disregard it or to matter is relevant. follow it. In a sense, we are dealing with an imperfect situation. We are trying, as the noble and learned Lord Foulkes of Cumnock: Would Amendment 55 Lord, Lord Neuberger, said, to craft something which tabled in my name and that of my noble friend Lord helps judges by reducing any political element in their Adonis not deal with the noble and learned Lord’s decision-making but which—I am sorry to use a political points? expression—allows our courts to take back control. In Lord Hope of Craighead: I am very grateful to the order to take back control, I am happy that they noble Lord and I apologise for not having paid due should have a great deal of freedom to do so without regard to that formula because the wording is exactly in any sense involving them in a political decision. what I am looking for, but I am trying to fit it into the Amendment 56 from the noble Lord, Lord Pannick, opening words of Clause 6(2). However, it is certainly and others is of course much longer than the original right; I respectfully suggest that “may” is the right wording, with three subsections as opposed to one. word to use. It is better to add in the bit about, Respectfully, I say that using words such as “relevant” “where it considers it relevant”, is only quite helpful, because in any event a court will which is what comes from the noble Lord, Lord Pannick. ignore matters that are irrelevant. I feel similarly about So one is putting together bits and pieces of thought the word “significance”: a court will itself have to from various attempts to produce a formula. decide significance. That of course may offend the Perhaps I may read out again for Hansard’s benefit political element but, if something is insignificant, the how I suggest the provision might run: “A court or court will disregard it in any event. Although I understand tribunal need not have regard to a judgment or decision what lies behind this amendment, I am not sure that it given by the European Court on or after exit day, but really does the trick. it may have regard to it where it considers this relevant for the proper interpretation of retained EU law”. If It is not just out of nominative loyalty that I turn to “may”is used—although the noble Lord, Lord Pannick, the amendment of the noble Lord, Lord Foulkes, but will correct me—proposed new subsection (2C) in because he may be on to something. I agree with the Amendment 56 will no longer be relevant. I say nothing use of “may”, which was endorsed by the noble and about subsection (2B) which may have force and value learned Lord, Lord Hope. I am not quite so sure about if the court requires guidance as to what to do with the “persuasive”, but I will listen to what the noble and agreement between the United Kingdom and the EU. learned Lord says. However, I like the succinct nature of the amendment and it seems to me to allow our I hope that that contribution will give the Minister courts the freedom that we have, as it were, granted something else to think about. I think that we all hope them by the decision that the country has made in that on Report he may be able to come back with a the referendum, but nevertheless not to compromise formula which we can all endorse. them. Lord Judge (CB): My Lords, perhaps I may add a few words, simply because of the devoted affection in Lord Hope of Craighead: Does the noble Lord have the Bill for the word “appropriate”. It is larded through any reaction to the point made by the noble Lord, the document. Its inappropriateness in this particular Lord Pannick, about the reference to, context needs to be underlined—I shall come back to it at a later stage under different clauses. It is terribly “another EU entity or the EU”, simple: if something is relevant to a court’s decision, it in Clause 6(2) as it stands? Section 3(1) of the European is likely to be appropriate that the court should look at Communities Act 1972 does not mention these and it. If something is irrelevant to the court’s decision, it refers only to the European Court of Justice, so it may cannot possibly be appropriate for the court to look at be that there is no need to refer to these entities and we it. So the term “appropriate” should go. can confine it to the European Court of Justice. 1099 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1100
Lord Faulks: I take that point from the noble and Lord Beith (LD): My Lords, if the noble Lord, learned Lord. I wait to hear from the Minister why he Lord Adonis, is wondering why the word “appropriate” considers that it needs to be included; at the moment, does not fit into the context of trying to limit judicial I am none the wiser. discretion, he should look at how many times it is used in this and other Bills to give Ministers the opportunity Lord Adonis: My Lords, my noble friend Lord to decide one way or the other, in what are quite Foulkes and I are basking in the judicial praise we clearly different kinds of decisions from those you have received this afternoon for Amendment 55. We would expect judges to make. put our pen to paper on it with no legal training Lord Hope of Craighead: My Lords, with respect to whatever. Perhaps we should offer advice, which no the noble Lord, Lord Adonis, what the noble Lord, doubt will be very expensively provided after this Bill Lord Pannick said in reply is in my experience absolutely becomes law, because we are able to cut through the right. To a judge, the word “relevant” requires him to issues with such great clarity. I note also that look at the issues that need to be decided. It is a much Amendment 55 is by far the shorter of those we are tighter word than “appropriate”, and is used frequently. currently debating, so clearly we were able to summarise In case law, one searches for the point that is directly these matters succinctly. relevant to the point at issue. It may be that legal I have listened to the debate and I am still none the terminology is best adopted because that is what judges wiser about the real difference, in plain English, between understand.Itisadifferentkindof wordfrom“appropriate”, “relevant”and “appropriate”. I simply cannot understand which judges do not normally use. Therefore, I suggest it. I was astonished at the vehemence of the statement it is a better word to use in this context. from the noble and learned Lord, Lord Neuberger, about the impact that this would have on the judiciary Lord Goldsmith: My Lords, given the time, it may where a court is expected to decide that something is be relevant, appropriate or even helpful to try to wind relevant rather than appropriate. It seems to me that in up this particular debate, although not in such a way plain English these words have precisely the same that undermines the very real importance of the meaning. They both require a court to exercise discretion amendment. and, to me, they look to require it to exercise precisely I want to underline two aspects. The first aspect is the same discretion. Unless the noble Lord, Lord legal certainty, which was referred to by the noble and Pannick, can lay out for us some compelling arguments, learned Lord, Lord Neuberger, and the noble Lord, as he always does with such lucidity, it looks as if it Lord Pannick. It is very important, for example, that does not matter one way or the other what we do here. in considering cases where retained EU law is in It is a straightforward matter of whether or not courts question, people and businesses are able to recognise are prepared to be robust in reaching their decisions. that if there are decisions of the Court of Justice of the European Union that are relevant, then it is likely— Lord Pannick: There is no doubt that there has to though not an obligation—that the courts will take be judicial discretion, the question is the extent to them into account. They can order their affairs on that which guidance is given to the court. To suggest to the basis, and that is a critical part of legal certainty. It court that it should exercise its discretion by reference seems right, therefore, that this amendment, to which I to whether something is appropriate suggests, does it have added my name, gives direction or guidance that not, that it is to make a policy decision? The question where such decisions are relevant to the interpretation is whether something is relevant, meaning legally relevant of retained EU law they should be paid regard. by reference to the particular issue that arises before The second principle is the independence of our the court in its legal context. judiciary. It is right in this context to refer to the shocking instance of the attack on our judiciary that Lord Adonis: The word “relevant” does not, in any took place at the time of the Article 50 decision. It was normal meaning of the word, mean legally relevant, shocking not just that our judiciary was referred to in any more than the word “appropriate” means legally such terms by a popular newspaper but that it was not inappropriate. immediately defended and the accusation rejected by the Government, including Ministers whose job it was to do so. In dealing with this particular amendment Lord Foulkes of Cumnock: My Lords, can I make a we have to be alive to the risk that if after exit day a confession before we go further? I cannot claim credit judge chooses—because he or she believes it right or for the wording of this amendment. The credit must relevant to do so; whatever word you want to use—to go to Michael Clancy of the Law Society of Scotland— make reference to a decision of the Court of Justice of that is why it is better than I would have done. The the European Union, that judge is not then subjected Law Society of Scotland says that, to a barrage of criticism and the accusation, “How “‘persuasive authority’ is a recognised aspect of the doctrine of dare you take refuge in decisions of this hated institution, stare decisis or precedent. Persuasive decisions are not technically one which we have left, in making decisions on this binding but the courts can pay special attention to them”. law?” It is important that we should look at this I mentioned the three courts earlier: the Judicial carefully and make sure that judges are protected. Committee of the Privy Council, the Court of Human Rights and the supreme courts of Commonwealth 2 pm countries. It seems to me to be a very good amendment, In those circumstances, the amendment does two but I do not want to take credit for it, as that must go important things. First, if the Bill is passed in this way, to someone else. it gives Parliament direction to say to judges that if 1101 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1102
[LORD GOLDSMITH] Lord Keen of Elie: My Lords, I, too, am grateful to something is relevant—which is an objective fact, though the noble Lord, Lord Beecham, for making that point. it requires appreciation; it is not a matter of subjective I would add only that I spoke as a Minister of this discretion as to whether it is relevant—they should Government in expressing that view, because I spoke take it into account. No one could then criticise a from the Dispatch Box when I made it clear. I can judge later by saying, “Why did you take into account refer the noble and learned Lord, Lord Goldsmith, to that European decision? You should not have done Hansard in regard to that point. Of course, the origins so”. of the remark may not have had quite the impact that Secondly, it makes clear to judges that if they do it could otherwise have had if coming from another not regard the decision to be relevant, it is then open source—I do not seek to elaborate on that point. to them—indeed, it may be their duty to do so—not to Sometimes it comes ill to counsel to listen rather have regard to that decision. That is why proposed than to speak, but this is an occasion when it is new paragraph (2C) in the amendment tabled by the entirely appropriate for me and for the Government to noble Lord, Lord Pannick, and others makes it clear listen to what has been said. I am extremely grateful that a court may determine that any judgment or for the contributions of all noble Lords and noble decision taken into account has no significance in and learned Lords with regard to the formulation of relation to its proceedings. That, in the language of Clause 6(2). I refer to the formulation of the clause Brexit, is giving control back to the courts; taking it because I believe we have a common desire to ensure back and not leaving it to someone else. That is very that we give appropriate, effective and clear guidance, important. in so far as it is required, to the judiciary regarding Perhaps I may underline that the House should what is a relatively complex issue. Of course the noble take great heed of the advice given by the noble and and learned Lord, Lord Hope, pointed out that in the learned Lords who have spoken, in particular the normal way one might delete Clause 6(2) and allow noble and learned Lord, Lord Neuberger of Abbotsbury, the courts to deal with this as they deal with other in his position as a former President of the Supreme matters of comparative law, but he went on to point Court, and that of the noble and learned Lord, Lord out—quite correctly, I submit—that here we are dealing Hope of Craighead. I am not sure that at the moment with a very particular situation where guidance may I agree with him completely about the right wording, be needed. I am conscious of the way in which the but on the importance of the principle I did not various amendments have evolved. understand there to be any difference between what he The noble and learned Lord, Lord Neuberger, also said and what others, including the noble Lord, Lord referred to Clause 6(4) and the issue of whether and Pannick, and the noble and learned Lord, Lord Neuberger, when the Supreme Court might decide whether to have said. adhere to precedents in this context. I bow to the far I hope that the noble and learned Lord who is to greater experience of the noble and learned Lords, respond—if I have correctly identified who is to speak Lord Neuberger and Lord Hope, who sat in the UK this time—will be able to say that the Government Supreme Court. My limited experience is that, where I accept that it is right to make amendments in this way. attempted to persuade them to adhere or not to adhere Whether he is able to accept quite what the formulation to a particular precedent, they had no difficulty in would be is another matter, but he may wish to consider, making their own minds up. between now and Report, whether discussions should take place to arrive at a formulation that those in the Be that as it may, I recognise the force of the points House who are concerned about this issue find to be a that have been made. They have come from beyond happy and helpful way of setting it out. That is for this House as well because, as noble Lords will be him to say. I would suggest that that would be most aware, the Constitution Committee also made some helpful, but in the meantime, I hope that on this recommendations about this. Indeed, its early occasion he will be able to say that in the light of what recommendation in March 2017 was, has been said about the importance of the principles “the Government may wish to consider whether the Bill should of legal certainty and doing everything we can to provide that, as a general rule, UK courts ‘may have regard to’ the uphold the independence of our judges, upon which case law of the Court of Justice (and we stress that it should be principle we all depend, the Government accept it and optional)”. will do something to make it right. Indeed, we were having regard to that as we looked at Clause 6(2). Lord Beecham (Lab): Does my noble and learned A point was made about the distinction between friend agree that, in all fairness, the noble and learned “may” and “must” in the amendment of the noble Lord, Lord Keen, distinctly and clearly criticised those Lord, Lord Pannick. It occurs to me that, where he attacking the judiciary at the time that my noble and uses “must”, he goes on in his amendment at (2C) to learned friend mentioned? qualify the context in which that word is used, and Lord Goldsmith: I am grateful for that unexpected there may not be a vast gulf between “may” and intervention from my own Front Bench, but I am “must” in the context of the two amendments that happy to take the opportunity to say that the noble have been tabled. Of course,that which was recommended and learned Lord, Lord Keen, was one of the few to by the Law Society of Scotland has the merit of some say the right thing and uphold the independence of simplicity and embraces the same point. the judiciary at the time of that attack. I am grateful to At this stage I would add only that the Bingham my noble friend Lord Beecham for making the point Centre looked at the current recommendations of the because it deserves to be made. Constitution Committee that lie behind the amendment 1103 European Union (Withdrawal) Bill[7 MARCH 2018] Housing: Holiday Lets 1104 in the name of the noble Lord, Lord Pannick, and contribute to the discussions that will take place before raised concerns about a number of aspects of the Report. I hope that, on Report, the Government will formulation put forward by the committee. However, I bring forward amendments to Clause 6(2). make it clear that we greatly appreciate the contributions that have been made to this part of the Committee’s Lord Goldsmith: Before the noble Lord withdraws debate. We will go away and consider the various his amendment, as I suspect he is going to do, can I formulations, and I believe it would be sensible for the ask him to clarify one point? He talked a moment ago Government to engage with various interested parties about the need to protect the judges. Would he agree once we have come to a view about how we can that it is a question not of protecting the judges from properly express what we all understand is necessary attack, but of protecting the independence of the policy guidance in the context of this exceptional step. judiciary and the rule of law? Against that background, I invite noble Lords to consider not pressing their amendments at this stage. Lord Pannick: I entirely agree with the noble and learned Lord. I think I said in opening this debate that Baroness Ludford: I know I will not be popular by it is not that the judges cannot withstand criticism of holding things up, but the Minister was specifically their judgments, it is rather that we are all concerned asked if he could explain the reference to, about confidence in the rule of law. As the noble and “another EU entity or the EU”, learned Lord said, if the judges are left to take policy in Clause 6(2). I do not know whether he feels he could decisions in a very sensitive context, where a decision do that. Does it have any reference to the European will have to be made as to the weight—if any—to give Commission? The Prime Minister said we would have to Court of Justice judgments handed down after a binding commitment to follow EU state aid and Brexit, there is no doubt that they will be exposed. competition law, and I wondered if it had any relevance They will be the subject of criticism which will undermine in that context. the rule of law unless we do our job and give very clear guidance on what Parliament thinks should be the Lord Keen of Elie: I am not going to elaborate at appropriate approach. this stage because, as I say, the Government are going I beg leave to withdraw the amendment. to go away and consider the proposals for an amendment to Clause 6(2). Amendment 55 withdrawn.
Lord Pannick: I am very grateful to the Minister for Amendment 56 not moved. that encouraging response, and I am grateful to the noble Lords and noble and learned Lords who have House resumed. spoken in this debate. On a matter of detail, the noble Lord, Lord Adonis, 2.14 pm asked about new subsection (2B) in Amendment 56, giving guidance to the judges to look to the relevance Sitting suspended. of an EU agreement. The noble Lord asked how that would work. I shall give him an example. If the judge is seeking to interpret a provision of retained EU law, Housing: Holiday Lets relating to, say, medicinal products; if the Court of Question Justice after exit day pronounces on a regulation which has become part of retained EU law,and if the withdrawal 3 pm agreement has said that there will be close regulatory alignment between the EU and the United Kingdom Asked by Baroness Gardner of Parkes in that particular area, then the judge would be encouraged Toask Her Majesty’sGovernment what assessment to pay close regard to what the Court of Justice had they have made of the impact on the availability of said about the meaning of the regulation. Our court long-term housing for rent of holiday lets, including would still be in control but it would pay particular those listed as rooms to let, particularly in London. regard—that is the whole point of new subsection (2B). There is widespread agreement around the House that the wording of Clause 6(2) is unsatisfactory and Baroness Gardner of Parkes (Con): My Lords, I beg that Parliament needs to give as much guidance as leave to ask the Question standing in my name on the possible to judges in this context to protect them from Order Paper. In doing so, I remind the House of my being seen to be required to take policy decisions, interests as declared in the register. which would undermine confidence in the rule of law. The Government and Parliament would be very unwise The Parliamentary Under-Secretary of State, Ministry to reject, in particular, the concerns expressed by the of Housing, Communities and Local Government and noble and learned Lord, Lord Neuberger of Abbotsbury. Wales Office (Lord Bourne of Aberystwyth) (Con): My It is much more difficult to identify precisely what Lords, the Government support the sharing economy. should be put in place of Clause 6(2). I am encouraged We do not hold information on short-term holiday by what the Minister said—that the Government are lets. We believe that it is for local authorities to assess listening and considering this matter. I am sure that all the impact within their area. The Government monitor noble Lords who have spoken would be happy to broader trends in private rented housing through the 1105 Housing: Holiday Lets [LORDS] Housing: Holiday Lets 1106
[LORD BOURNE OF ABERYSTWYTH] Lord Palmer of Childs Hill (LD): My Lords, the English Housing Survey. We condemn, however, any problem is enforcement, as the Minister rightly said. abuse of planning laws, and those in breach face a fine Westminster is probably the best example of an authority of up to £20,000. that uses the enforcement procedure, but most authorities do not use the enforcement procedure for the 90-day Baroness Gardner of Parkes: I thank the Minister limit to which the Minister referred. The market has for that Answer, but remind him that I have asked this completely changed. Will the Minister also address Question since 2015. In the previous Session, I tabled the fact that holiday lets and Airbnb lets are now dealt a Question for Written Answer on a number of occasions: with very much on a commercial basis, but in blocks for example, on 14 September, then again in October of flats very often one person or one company owns and in February. Each time the answer that came back all the flats and let them through Airbnb? It is not was just, “No”, or sometimes, “No, it is not possible”, people just earning a buck or two on their own home. or, “No, we are not thinking of it”—but it was basically “No”. Why can I not be given the reason why the Lord Bourne of Aberystwyth: I remind the noble answer is just “No” without any accompanying Lord that of course this is a London issue. The 90-day explanation, when the role of local authorities in limit applies only in London—and, significantly, it is a protecting residents who are being abused in their real issue only in the inner London boroughs. I am blocks is terribly important? encouraging the Short Term Accommodation Association to speak to those boroughs—as indeed it is doing—to Lord Bourne of Aberystwyth: My Lords, I thank the see if it can carry forward the process that it is engaged noble Baroness for a reminder that I did not really in with Westminster into the other boroughs. For need: namely, that she has asked this Question over a example, it is developing a Considerate Nightly Letting period of time. If she reviews the Answers that she has Charter with Westminster Council—again, that could had, she will see that they go into considerable detail. be replicated for other councils. I remind noble Lords Suffice it to say that significant progress has been that, where a local authority has a suspicion that the made. The noble Baroness would probably do well to law is being breached, it can apply to the Secretary of discuss her circumstances with the Short Term State to restrict the 90-daypower and can take enforcement Accommodation Association, as I have suggested action. There is the power there; it is for local authorities previously. However, Airbnb physically cannot let a to do that. property for more than 90 days in a year; it has a system designed to stop that. I think that goes some Baroness Couttie (Con): My Lords, I refer noble considerable way to addressing this, but I would be Lords to my interest in the register. Is my noble friend happy to direct the noble Baroness to meet people at the Minister aware that in one of our wards in Westminster, the Short Term Accommodation Association who are where I was the leader until January last year, as much responsible for this significant progress. as 10% of the properties are let out on short-term lets, many on a commercial basis and for far more Lord Kennedy of Southwark (Lab Co-op): My Lords, than 90 days because multiple agencies are used? Is it I refer the House to my relevant interests in the not the case that a simple registration system to allow register. The noble Baroness, Lady Gardner of Parkes, local authorities to know when the 90 days had been has raised this issue many times and deserves great breached would allow cost-effective enforcement of credit for her persistence. Can the noble Lord say what the 90-day rule? work he and his department have done to make sure that holiday lets are not used by landlords to get round their legal obligations? Lord Bourne of Aberystwyth: I thank my noble friend for that question. As I indicated, the action that Lord Bourne of Aberystwyth: My Lords, I certainly the Short Term Accommodation Association is proposing can. I have spent a considerable time speaking to the will get round the particular problem that we have Short Term Accommodation Association, which makes with the Data Protection Act, because it will then be up the bulk of the people in this market, and in able to share the data. The power lies with local particular Airbnb. It proposes a data-sharing protocol authorities and I would gently say to my noble friend with Westminster council to enable the sharing of that if Westminster has a suspicion that the law is data. The basic problem at present is that different being breached, it really should pursue the matter. suppliers cannot share the data one to another—so Airbnb can take care of a particular problem relating Lord Whitty (Lab): My Lords, does the Minister to it but cannot share the data with other providers. recognise that in Westminster and other inner London Airbnb is by far the largest provider, but there are authorities, in places that were originally social housing, many others. To enable providers to share data, they Airbnb and other organisations are setting up short-term need a trigger from the local authority—any local lets that in most cases are in breach of the leasehold or authority that has a concern—so they can then share tenancy? Does he also recognise that local authorities the data. This would take care of the problem. I will should enforce the leases and tenancies they already send a letter to the noble Lord on the progress being have and should be backed by central government in made, copy it to all noble Lords participating in the doing so? debate, and leave a copy in the Library. However, I invite my noble friend to speak to the Short Term Lord Bourne of Aberystwyth: Obviously if there is Accommodation Association, as I know that she has an issue between landlord and tenant, it is for the particular concerns about her properties. landlord to enforce that. The Government have no 1107 Housing: Holiday Lets [7 MARCH 2018] Schools: Music 1108 role in ensuring that leases are enforced. We would Future, whose members include many organisations encourage that, but that is a matter for the landlord. It who are worried about the increasing marginalisation happened relatively recently in relation to a case called, of music in our schools? I think, Nemcova in the London Borough of Barnet. There is the power to do just that—but it is, as I am Lord Agnew of Oulton: To reassure the noble Earl, sure the noble Lord appreciates, a matter of contract, Lord Clancarty, I will be happy to meet with him and not a matter in relation to the law regarding landlord colleagues from this Chamber to discuss the matter and tenant. I will say, in support of what Airbnb is further. However, there is no evidence that arts subjects doing, that it is within the law because it is ensuring have declined as a result of the introduction of the that there is no let of more than 90 days on its watch. I EBacc. Indeed, the proportion of time spent studying do not think that we can reasonably ask it to do more. music has remained broadly stable since 2010. Since It cannot share the data under the law; it is looking at the EBacc was announced, the proportion of pupils in this protocol to enable it to do so. state-funded schools taking at least one arts subject has also remained stable. I have a very strong personal Lord Clark of Windermere (Lab): My Lords, although commitment to music. My own father was cured of a this question is related, to a certain extent, to London—but debilitating stammer through learning to sing and so not entirely, as the Question says—is the Minister breathe properly. I am doing everything I can to aware that in certain national parks, we are not talking encourage music in the system. about 10% short-term lets: in some villages we are talking about 50%, 60% or 70% and the local authorities have no authority at all to stop it? Will the Government Baroness McIntosh of Hudnall (Lab): My Lords, I look into this, because it is destroying rural communities am very interested in what the Minister just said about right across the country? his own family experience. While I fully accept that there is an issue about the academic study of music in schools, music also makes an important contribution Lord Bourne of Aberystwyth: I appreciate that the to the health of schools as communities. As there is so noble Lord is speaking about his home area. I know much concern at the moment about child and adolescent he speaks with authority on the Lake District. I am mental health, would he accept that it is important very happy to look at that issue if he would like to that there are opportunities in schools for children to come forward and arrange to see me with some evidence. participate in music for the therapeutic and social It is obviously a very different issue because there is no benefits it conveys, and that that is particularly true of suggestion of a breach of the law; it is about whether performing music in groups? there is a particular problem. Lord Agnew of Oulton: I agree with the noble Schools: Music Baroness entirely. Some case studies that I pulled in Question ahead of this Question bear out what she said. In my own academy trust, the Inspiration Trust, I appointed 3.08 pm a director of music just before I took on this role, and I asked him to give me his early feedback—he started Asked by The Earl of Clancarty only in September. He said: “On listening and music To ask Her Majesty’s Government whether they appreciation, the pupils find listening easier and can will take steps to improve opportunities for the listen for longer; pupils more readily try new things. study of music in schools. Improved multitasking skills: pupils react, listen, move, hum along to music while focused on their main task”. With regard to extracurricular ensemble, he talks about TheParliamentaryUnder-Secretaryof State,Department pupils being better able to understand commitment, for Education (Lord Agnew of Oulton) (Con): My Lords, time management, perseverance and co-operation. So the Government believe that all pupils should have I completely agree with the noble Baroness. access to an excellent, well-rounded education. Music is an integral part of a pupil’seducation and a compulsory subject in the national curriculum at key stages 1 to 3. Lord Lexden (Con): Has my noble friend noted that Between 2016 and 2020, we will provide £300 million nearly 650 independent and state schools are now of funding for music education hubs to ensure that all collaborating in the teaching and performing of music, pupils have the opportunity to learn an instrument, and would he agree that further scope exists to increase sing and perform regularly and have access to clear these joint ventures as independent schools seek to routes of progression. play a larger part in the education system as a whole, in accordance with the Government’s wishes? The Earl of Clancarty (CB): My Lords, the Minister will know that, in the last year alone, take-up of Lord Agnew of Oulton: I agree with my noble GCSE music in England fell by 8%. Is he aware that friend. Indeed, apart from the 641 independent schools the University of Sussex survey of 6,500 schools found in music partnerships, 492 independent schools invite that teachers, who should certainly know, held the pupils to attend lessons or performances, and 51 second EBacc primarily responsible for this decline—a view music teaching staff to state schools. Since I took on supported by a recent Education Policy Institute report? this post, I have met once the chairman of the Independent Will the Minister agree to meet to discuss these concerns Schools Council, and I am meeting him again soon to with myself, other interested Peers and Bacc for the review collaboration between the two sectors. 1109 Schools: Music [LORDS] Nurses: Training 1110
Lord Wallace of Saltaire (LD): My Lords, I declare children to have a shot at a good university. We know an interest as a trustee of a musical education charity, good universities have facilitating subjects, which tend the VCM Foundation. Can the Minister give us figures to be the EBacc subjects. Overall, the commitment to on the numbers of music teachers in schools? We as a music remains and 120 music hubs are supporting foundation have discovered that large numbers of some 14,000 ensembles across the country. primary schools, in particular, now have no teachers with any musical experience. We and some others are now helping to train teachers without musical experience to ensure that all schools have the opportunity to sing Nurses: Training together and to learn to work together in the way that Question one can do through music. 3.16 pm Lord Agnew of Oulton: My Lords, the most recent Asked by Lord Clark of Windermere figures I have for 2016 show that there is only a 0.5% vacancy rate for teachers of music in state schools. To ask Her Majesty’s Government what specific proposals they have to increase the number of fully Lord Palmer (CB): My Lords, what steps are being trained nurses working in the National Health Service taken to ensure that the £5-a-week charge for students and the associated care services. taking GCSE music, as at Bingley, for example, will not become more widespread? TheParliamentaryUnder-Secretaryof State,Department of Health and Social Care (Lord O’Shaughnessy) (Con): Lord Agnew of Oulton: My Lords, I believe that My Lords, there are record numbers of nurses working when that was raised in the media recently, the school in the NHS in England, including 13,900 more acute, in question removed the charge, and I am not aware of elderly and general nurses. Toincrease the future supply any other examples of that happening. Certainly, if of registered nurses, the Government are funding over the noble Lord is aware, I would be pleased to hear 5,000 more student nursing places for those entering from him and I will investigate it. training each year from September 2018. Weare opening up new training opportunities to increase the number Lord Watson of Invergowrie (Lab): My Lords, my of professionally qualified nursing staff across the noble friend Lord Kennedy once played the bassoon healthandsocialcareworkforcethroughtheapprenticeship in the London schools orchestra. The chances of a route. young person from his school in Peckham doing so this year are considerably less because of the cuts to funding in many state schools for arts and creative Lord Clark of Windermere (Lab): I thank the noble subjects. Despite what the Minister said, I concur with Lord for his reply, but I do not think the Government the noble Earl, Lord Clancarty—in 2017 the number really grasp the seriousness of the shortage of nurses. of pupils taking GCSE music is down to an all-time In the last two years, 33% fewer students came forward. low of 5.5%, which is a very serious situation. We have a shortage of 40,000 nurses and it will take years to put that right. Can I make a suggestion to I have told the Minister before that Labour will him? The best and quickest way to increase the number introduce an arts pupil premium to ensure that every of trained nurses is for the Government to drop their child in a primary school in England has the chance to opposition to the bursary scheme for postgraduate learn a musical instrument, go to the theatre, or take students. These two-year courses are cheaper; it would part in dance and drama. The funding necessary for cost the average funder £33,500 for the two-year course, this cannot be escaped by the Government. Will the which is half as much as the average trust would pay Minister say why the facilities in state schools are still simply to employ an agency nurse for a year to fill the so much worse than they are in many private schools—a gaps. Why will the Government not follow that route? situation which would be reversed by Labour’s arts pupil premium—or are the Conservative Government quite content for the study of music to be the preserve Lord O’Shaughnessy: My Lords, we take very seriously of the wealthy? the need to train more nurses. There are 52,000 nurses in training and, as I have said, there is a commitment Lord Agnew of Oulton: My Lords, spending on to increase the number of training places by 25%, music and cultural education programmes has been which is obviously how we get to a long-term solution. stable for the last four years—it declined in 2013-14 On the issue that the noble Lord has raised about and 2014-15, but we increased it. The noble Lord postgraduate bursaries, the policy intention is to bring asked me a Question about EBacc in November, and I these courses in line with other courses. I know that gave the response then that we probably have different this is an issue of great concern. The Royal College of priorities. I believe EBacc has been an enormous tool Nursing has expressed its concerns and we take those for improving social mobility in children from less seriously. I also know that the regulations have been advantaged backgrounds. We are seeing a dramatic prayed against in the other place; they are also being increase in the number of children who are studying lookedatintheSecondaryLegislationScrutinyCommittee EBacc subjects such as science, geography, history and and we await its report. I reassure him that the issue is modern foreign languages. The reason we were so keen being considered and we will respond once the committee on this is that it provides an opportunity for these has reported. 1111 Nurses: Training [7 MARCH 2018] Emergency Hospital Admissions 1112
Viscount Hailsham (Con): My Lords, as someone about the wonderful figures that suggest that all is well who is frequently involved in regulatory work involving and good in the health service regarding nursing vacancies, nurses, I ask my noble friend what is being done to when the reality on the ground is somewhat different? ensure a proper standard of clinical performance and My local hospital is facing a crisis. a proficiency in languages on the part of nurses trained abroad and, most especially, on the part of those Lord O’Shaughnessy: I do not pretend that all is trained outside the European Union. well and good; I merely state what has happened. We know that there are challenges from increasing demand Lord O’Shaughnessy: I thank my noble friend for in the health service. We need more staff, which is why highlighting that important issue. A very stringent we are committed to training more staff. Unfortunately, language test is imposed by the Nursing and Midwifery I am not in a position to comment on the challenges of Council—indeed, it is perhaps so stringent that it has the noble Lord’s trust but I will be delighted to look at excluded some nurses who are perfectly capable of them with him. However, as we know, there is more practising in this country. A review of that is going on demand and we have an ageing population. We need at the moment to make sure that a proper line is more staff and we are trying to train those staff. drawn—ensuring professional competence, including in technical language, while not excluding people who Baroness Rawlings (Con): My Lords, I declare an would be perfectly capable of practising well in this interest which is not in the register. One of my first country. jobs was as a VAD nurse, which some of your Lordships might remember—it was a long time ago. What do the Baroness Walmsley (LD): My Lords, is the Minister Government think of bringing back VAD nurses, or, aware that the vacancy rate for nurses in social care as they are called today, auxiliary or volunteer nurses, settings has doubled over the last four years? Given to help in the nursing crisis? the other pressures on nursing homes,will the Government take specific action—perhaps grants for placements—to Lord O’Shaughnessy: I thank my noble friend for relieve this problem, which the NAO has described as that question. I think that we need to diversify the dangerous? routes into nursing and this is probably how we do it. One way in which that is happening is through the Lord O’Shaughnessy: The noble Baroness has creation of nursing associates, which is a level 5 highlighted an important issue, which is the number of apprenticeship programme. To be clear, these are not nurses in social care. I recognise that to be a problem, nursing positions—they are not registered nurses—but as does the department. A specific social care workforce they provide an opportunity for those who have a consultation will get under way and is linked to the desire to get into that career and want to learn on the overall draft workforce plan that Health Education job but who do not yet have the skills to start working England has published. This is something that we are towards a full-time registered nursing position. looking at. We can solve it to some extent by increasing the overall number of nurses, but we need to find ways of attracting them into the social care profession. Emergency Hospital Admissions Question Lord Patel (CB): My Lords, does the Minister agree that the lack of NHS nurses and other healthcare 3.23 pm workers is due to the lack of a long-term sustainable Asked by Lord Bird workforce plan, as identified by the House of Lords committee report? If, following that report, the To ask Her Majesty’s Government what steps Government now have a long-term workforce plan for they are taking to reduce and prevent avoidable the NHS, when might it be published? emergency hospital admissions.
Lord O’Shaughnessy: I congratulate the noble Lord TheParliamentaryUnder-Secretaryof State,Department on his committee’s work in this area and on making a of Health and Social Care (Lord O’Shaughnessy) (Con): proposal, which we have followed in putting forward a My Lords, NHS England and NHS Improvement are 10-year draft plan. I hope that he will have had the implementing a number of national programmes to chance to see that—it will of course firm into a transformNHSservicessothat,whereclinicallyappropriate, concrete plan. It is fair to say that it is honest about a patient’s care is managed without the need for a stay both the successes and the challenges that we face in in hospital. This is being achieved through services needing to train more nurses. We are trying to find becoming better integrated across health and social new ways of doing that, not just through the university care, as well as managing hospital care differently, so route but through apprenticeships. that more patients are treated as day patients in A&E or streamed to see a general practitioner. Lord Bassam of Brighton (Lab): My Lords, yesterday evening I went home and turned on my local news to Lord Bird (CB): I thank the Minister for that Answer. find that the Royal Sussex County Hospital was calling The recent report of the National Audit Office stated on people who might otherwise use its services to keep that nearly 25% of people who go into hospital do so away. The hospital has some 900 vacancies. How can in an avoidable situation, which could be sorted out in the noble Lord come to the Dispatch Box and tell us the community. This is a clear case of why we need 1113 Emergency Hospital Admissions[LORDS] Emergency Hospital Admissions 1114
[LORD BIRD] Baroness Finlay of Llandaff (CB): Is the Department more prevention. What extra thinking and resources of Health and Social Care, in conjunction with NHS will the Government bring into the community so that England, monitoring the completeness of 24/7 nursing we do not have the ridiculous situation of such people coverage in the community? Even though the pilots, going into hospital, where we have the problem of a which will have a virtual ward, will help determine the shortage of nurses and all the other things that knock most vulnerable patients, those patients will still need on? hands-on nursing at the time they need it. If it is not available, they will inevitably end up being transported to hospital. Lord O’Shaughnessy: The noble Lord makes an important point. It was good to study the report and the noble Lord is right about avoidable hospital Lord O’Shaughnessy: One of the issues the NAO admissions. Two changes are happening. One is GP reports is that we do not yet have good enough data on extended access, which now has 95% coverage across what is happening in the community. The creation of the country—that is, evenings, weekends and so on—as the community services dataset will enable us to track primary care. We also have interesting results coming precisely what is available in the community in every from the new models of care programme. I highlight area. Concerns have been raised in this House before one that is happening in mid-Nottinghamshire. It is about the number of district nurses, which unfortunately called PRISM and it is a virtual ward for at-risk has fallen over recent years. It has now shown a small patients which enables multidisciplinary teams to look increase year on year and we hope we are starting to at vulnerable people before they come to hospital. It turn the corner on community nursing numbers, too. has reduced A&E attendance for those aged over 80 by 17%, which is significant. It is precisely this kind of Lord Hunt of Kings Heath (Lab): My Lords, there thing that will make the difference that we need. are two stark facts from the NAO report. First, the real problem has been the reduction in social care funding. Surely the real answer to this problem, above Lord Brooke of Alverthorpe (Lab): Is the Minister all else, is to restore what has been cut. Secondly, I aware that in 2016-17, 30% of admissions to A&E of refer the Minister to the chart in that report which people aged 65 and over were alcohol-related? Is he shows that, despite the increase in demand, bed capacity further aware that, given the need for the services of has been cut by 6,000 beds since 2010-11. I understand psychiatrists to look after those people, training for that in February the occupancy rate reached a dangerously psychiatrists has reduced dramatically in the past 10 years high level of 95%. Does the Minister accept that, while and we have no facilities available to look after them? we need to prevent avoidable admissions, it is very Turning to a longer-term public health policy, when unwise to reduce acute care capacity at the moment? will the Government do something about the increasing number of people going into hospital due to alcohol problems? Lord O’Shaughnessy: I agree with the noble Lord about funding. The Government have now made £9.4 billion of extra funding available to local authorities Lord O’Shaughnessy: It is now the case that thousands over three years, including in the most recent local of GPs and hospital staff have been trained to screen government funding settlement. The noble Lord makes for the signs of alcohol abuse and to provide intervention. a good point about bed capacity: it had shown a So not only are there dedicated staff and dedicated downward trend for a long time before stabilising in public health programmes, but hospital and primary recent years. I point to two successes this winter. The care staff have now been specifically trained to look first is the improvement in delayed transfers of care—we for the signs and to signpost people to care when they have really started to get some traction on that. The need it. second is about £60 million, I believe, of funding that went into providing extra bed capacity over winter. Occupancy levels are too high. The NHS is getting Lord McColl of Dulwich (Con): Does the Minister better at managing it more efficiently, but we certainly agree that one of the causes of the recent pressure on need to do better. acute hospital beds is that young people and children who are waiting for scarce specialist mental health Lord Rennard (LD): My Lords, does the Minister beds are frequently put into inappropriate adult wards accept that part of the problem with emergency hospital because there is no room for them anywhere else? admissions is the difficulty people have in accessing Would the Minister look into that again? their GPs? Some of this is perhaps because of the high levels of stress among GPs, but there is also recent Lord O’Shaughnessy: I thank my noble friend for evidence suggesting that it is because of the £1 million making that point. Unfortunately, we have a growing pension cap imposed on GPs, which means many prevalence of the kind of mental illness he is describing. more of them are retiring before the age of 60. Surely, We are in the process of increasing the number of in the interests of the NHS, this particular cap should in-patient beds available for young people going through be looked at again. those kinds of episodes. That is the right thing to do. It means that they will not have to travel so far from their Lord O’Shaughnessy: Although the number of early homes and has the benefit of relieving the impact on GP retirements has been rising, the number of total adult acute beds. GP retirements has been falling, which is encouraging. 1115 Emergency Hospital Admissions[7 MARCH 2018] European Union (Withdrawal) Bill 1116
It is also important to point out that, while the pension the attention, presumably with explanation. That will cap obviously applies to everybody, it has not had the surely then be fed into the scrutiny when we get to the impact that the noble Lord described on dentists or delegated legislation. consultants, so there is something more to it. It is to However, I also have in mind some of the debate we do with how GP services are structured and providing got into late on Monday night about rights in Schedule 1. support for that partnership model. That is what we The structure of Schedule 1 is somewhat similar in so are trying to do at the moment. far as all challenges are first disallowed and then some might be allowed by regulation. I contrast that with the present clause, which disallows interpretation to European Union (Withdrawal) Bill apply to modifications, and then subsequently says that it does not stop it being as in subsection (3). I note Committee (5th Day) it does not say who is making it clear whether the modifications come under EU law. I wonder whether 3.31 pm it will be left to the judges—if it is, they may want better clarity—or will the modifications themselves Relevant documents: 12th Report from the Delegated make it clear when they are put before us? Powers Committee, 9th Report from the Constitution In the context of Schedule 1, the noble and learned Committee Lord, Lord Keen, referred to the regulation that provides the right to challenge validity as an exceptional power, Amendment 57 which I suppose it is by the way it is formulated as an exception to the earlier general exclusion of challenges. Moved by Baroness Bowles of Berkhamsted I took the noble and learned Lord to mean that the 57: Clause 6, page 3, line 38, leave out from “decided” to power would be used rarely, rather than, for example, second “so” as a list prepared in advance, which was the point probed by my noble friend Lord Beith. If I follow a similar logic on the follow-on positioning of Clause 6, Baroness Bowles of Berkhamsted (LD): My Lords, does that mean that the situation envisaged in Amendment 57 in my name is to Clause 6(3) which subsection (6), with the retaining of EU interpretation says: for some modified parts, will be exceptional, in the “Any question as to the validity, meaning or effect of any rare sense, or will it be normal in the sense of maximising retained EU law is to be decided, so far as that law is unmodified the status quo? We need to know. on or after exit day and so far as they are relevant to it … in accordance with any retained case law … general principles … Also, again reflecting the Schedule 1 debate,Clause 6(3) and EU competences”. refers to a question of validity of retained EU law, so My amendment would delete the words, is it correct that retained EU law can be struck down unless we follow the primary legislation suggestion of “so far as that law is unmodified on or after exit day”. the Constitution Committee or unless it is already This would mean that retained EU law was continuing primary legislation, and that it would be struck down to run using EU-derived interpretation, including for by common law, not EU principles or case law, which the amended parts. This is by no means a perfect would just help with interpretation? If that is so, might amendment, but it is intended to probe the relationship some EU retained law be struck down in effect because between the wording in subsection (3) and that in it came under common law plus EU interpretation, subsection (6), which says that modified law can be whereas it might not have been struck down if it had incorporated as in subsection (3) if it, been under common law alone? That is what I deduced “is consistent with the intention of the modifications”. from reading Hansard and the response to the question I want to gain some more clarity on the presumptive from the noble Lord, Lord Pannick, on common law. I path around those two subsections. confess that I did not necessarily hear the response The general message that we are being given by properly at the time. That is nothing against the noble Government—the high-level presumptive path, if you and learned Lord’s diction and more to do with the like—is that there is not really an intention for policy temporary impairment of my hearing due to my head change via modification. But, there are no absolute cold, as well as to my voice today. commitments to state that on the face of the Bill, The other amendments in the group are of a different perhaps because incidental things may nevertheless nature. They relate to things that can be taken into count as policy change. account in interpretation. My Amendment 59 and My submission, which applies to other clauses and Amendment 58 in the name of the noble Lord, Lord the schedules as well, is that the need for adaptability Krebs, are similar, referencing recitals and preambles. does not remove the possibility for a more granular My amendment is to subsection (3)(b), which relates laying out of the presumptive path. That leads me to to EU competences, because I wanted to draw attention query what presumption comes from the order of the to the fact that not only does the content of recitals subsections. I submit that the default presumption need to be used for casting light on interpretation, but should be that EU case law, principles and competences they are part of the competences architecture and apply unless the Government have specifically explained directions relating to what is expected of delegated why that does not work in connection with a particular legislation, just as can be the case with empowerments modification. That seems a clearer and easier way to for regulations in UK legislation. It is part of the do things because the modifications are the focus of definition of EU competences for interpretation purposes. 1117 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1118
[BARONESS BOWLES OF BERKHAMSTED] framework. It refers to the following: Article 174 of Tomake my position clear,Amendment 60 specifically the Treaty establishing the European Community; the references powers of delegation. Footnote 24 to Fifth EC Environmental Action Programme, “Towards paragraph 83 of the Explanatory Notes says: Sustainability”; the Convention on Biological Diversity; “Recitals will continue to be interpreted as they were prior to and the United Nations/Economic Commission for the UK’s exit from the EU … casting light on the interpretation Europe Convention on Environmental Impact Assessment … but they will not themselves have the status of a legal rule”, in a Transboundary Context. These references establish I do not think that that explanation is necessarily that the directive prioritises sustainable development, sufficient to encompass what I have just tried to lay conservation and sustainable use of biological diversity. out. Given that the role of EU agencies will be taken In contrast, the Explanatory Notes of the UK regulations over by UK bodies, they should also take over the appear to be focused on planning and development. constraints that are written in, at least until Parliament They present the regulations as a requirement to be decides otherwise. Therefore, recitals need to have a satisfied, rather than as a clear attempt to put greater role than previously, or at least that possibility environmental protection obligations at the heart of should not be excluded. planning law. As a general point, I mention that there is a symmetry I very much hope that the Minister will be able to between how EU legislative Acts can be allocated as reassure us that the intent of transposed EU Laws will between those that should require primary legislation be retained. If this amendment, together with the to amend and those which can be considered delegated, amendment of the noble Baroness, Lady Bowles of and the EU architecture of competences: those two Berkhamsted, is not accepted, please could he tell the are symmetrical. If that mapping is got right, getting Committee how he intends to ensure that the recitals returning powers allocated into their proper place in and preambles are to be embedded in our laws after the UK, particularly between Parliament and regulators, exit day? then that logic of how interpretation is influenced, not just by EU competences versus member states but also Baroness Jones of Moulsecoomb (GP): My Lords, with regard to internal EU levels of competences, will the noble Lord, Lord Krebs, has explained why these flow naturally into the structure. recitals and preambles are so important, and I thought There are other important policy points within that I would give an example. They are important preambles and recitals and I will leave those for other because of the purposive approach of EU law, which speakers to elaborate on. I will just say that I agree is quite alien to our UK law, which has a literal with all that I am expecting them to say on that point approach. This is particularly important in the area of about their importance to policy. I beg to move. environmental law. For example, the European court relied on the recitals and preambles to interpret article 22 Lord Krebs (CB): My Lords, I shall speak to of the air quality directive in the ClientEarth litigation, Amendment 58, in my name and those of the noble where it successfully forced the Government to publish Baronesses, Lady Jones of Moulsecoomb and Lady their air quality plans. This ruling was absolutely Jones of Whitchurch, and my noble friend Lady Brown crucial for our health and well-being in the UK and of Cambridge. As the noble Baroness, Lady Bowles of without using the preambles the court would not have Berkhamsted, has already mentioned, her Amendment 59 been able to properly interpret the wording of the has a similar intent to Amendment 58 and therefore I substantive article. The courts in our country will have support it. a huge job on their hands of making sense of all this The purpose of this amendment is very simple: it is retained EU law that we are going to thrust upon them to ensure that recitals and preambles to EU laws are if they do not have the recitals and preambles; these given a clear legal status by the Bill. Why is that are essential to understanding the law and their job important? The recitals and preambles explain the will be much harder without them. I beg the Government background to, and objectives of, legislation and are to look at this issue and rethink their position. therefore essential to understanding the legislation that follows. While in UK law the purpose of any piece Baroness Jones of Whitchurch (Lab): My Lords, my of legislation will be clear as a result of the process name is also added to Amendment 58 and I support leading up to the legislation—for instance, a Green the very compelling case made by the noble Lord, Paper, a White Paper and a parliamentary debate—with Lords Krebs, and, indeed, by the noble Baroness, EU-derived law there is no equivalent process. Therefore, Lady Jones. the recitals and preambles are essential for placing the I, too, speak as an environmentalist. As has legislation in context. If they are not given a clear legal already been highlighted, the implementation of EU status they maybe forgotten or ignored by decision-makers environmental law in the UK is drawn from several and the courts. As has already been mentioned, although sources, all of which, in our application of it, have the great repeal Bill White Paper, in footnotes 17 and equal weight. For the most part, it is a welcome and 24, recognised the importance of recitals and preambles, uncontroversial addition to our UK environmental this does not provide the legal certainty that is needed. legal framework; it is often uncontentious and applied without legal recourse. Indeed, few people would argue 3.45 pm that we should revert to dirty beaches and polluted I am approaching this matter from the perspective bathing water and there is a common consensus that of environmental protection, so let me give an we need to adopt the EU regulations and directives. environmental example to illustrate my point. The Though these standards are very much taken for preamble to the strategic environmental assessment granted they do not always originate from the same directive contextualises it within a larger international legal source, which is why amendments such as 1119 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1120
Amendment 58 are so important. All the amendment than the individual directives and regulations. It may does is to seek to protect what we have now—nothing well be that the courts, in their wisdom, will take into more than that. The recitals and preambles which account something that European law has previously preface the formal wording of the legislation are important said, but unless that is laid down as a central principle for explaining, in layperson’sterms, as the noble Baroness, of this transposition, whether or not to take it into Lady Jones, explained, what the legislation intends to account will be at the courts’ discretion. achieve. They often include important principles which The Government’s commitment was that we would underpin the legislation. I have referred previously to have the European law on day one of Brexit in exactly examples of these preambles, such as article 1 of the the same form as we did the day before. That has environmental liability directive, which includes reference broken down in the way in which the Bill has been to the polluter pays principle, and article 1 of the presented in a number of respects. It has broken down habitats directive, which spells out the aim to deliver on the European Charter of Fundamental Rights; it biodiversity conservation. However, there are many has broken down with regard to animal sentience, as others, some of which have gone on to be tested and we debated the other day; it has broken down on the captured in UK legal judgments, but others have not. environmental law which the noble Lord, Lord Krebs, Very simply, my challenge to the Minister is: if referred to; and I was going to use the air quality these amendments are not acceptable, what will be the example that the noble Baroness, Lady Jones, referred future status of these preambles, and how can we be to. Unless Parliament gives a signal to the courts that assured that they will have the same effect as we have these preambles and recitals must be taken into account previously enjoyed? We regard them as an integral —as must, in my view, the principles laid down in the part of current EU law, so if there is no place for them treaties—we are not doing what the Government have in the transposed UK law, does the Minister accept promised the people of this country that they would that this will represent a watering-down of the do; namely, that European law would not be changed Government’s promise to enhance, rather than diminish, on day one of Brexit and then only if it was necessary our environmental standards? I hope he can clarify or Parliament so decided. Unless we do something that. very similar to what the amendment of the noble Lord, Lord Krebs, does, we are not doing what the Lord Mackay of Clashfern (Con): My Lords, I Government have promised the nation. would have thought it was clear that when we are incorporating EU law into United Kingdom law, the Baroness Featherstone (LD): My Lords, I support law in question will not be edited—apart from questions Amendment 58 in the name of the noble Lord, Lord of not working and so on, which are separate—and Krebs. I was greatly relieved by the noble and learned the whole instrument will be transformed into UK Lord’s rebuttal because my interpretation of what we law. Judges always try to understand the legislation as are doing is that we will not have the protection of the a whole and read the document as a whole. Therefore, recitals and the preambles. Our problem is that any I think I can assure noble Lords that the courts here law leaves room for interpretation. EU law in particular will look with great interest at these recitals and is often a reflection of the manner of its birth: it has preambles—particularly in view of what the noble 28 single parents. Baroness said about the difficulty of some of them—to To reassure those of us, particularly from my point see if they can help them understand properly and of view as the spokesperson on energy and climate make a proper construction of the instrument in question. change, who do not necessarily trust things to naturally follow and for this Government or possible future Baroness Jones of Moulsecoomb: My Lords, in that Governments to be as keen on some of the standards case, what is the point of not keeping them in? required in EU regulations and directives, it is in the recitals and preambles that we can gain some measure Lord Mackay of Clashfern: There is no question of of comfort, as a guide to the intention of a particular not leaving them in. They will be left in in any case. instrument. The recitals supplement the operative part There is no question of putting them out. I will see of the directive. They are interpretive tools in the EU what my noble and learned friend the Minister has to legal order, and if we simply transfer the law but not say about this but so far as I am concerned, it is not the recitals we are removing a beneficial tool. I am necessary because the whole instrument will be afraid that assurances and good intentions from the incorporated. There is no question of editing it or Government are not adequate when it comes to something leaving out half of it or the beginning or anything. My as important as our environmental protection. noble and learned friend may be willing to give the It is quite clear that the Bill does not deliver that assurance that the whole instrument will go in. I must security and surety. We need certainty in the Bill, so I say, I would have hoped that that would be understood hope that the Minister will be able to accept the without it having to be said. amendment. This amendment is only part of that certainty and protection. Lord Whitty (Lab): My Lords, I hesitate to challenge the noble and learned Lord, Lord Mackay, on points Lord Goldsmith (Lab): My Lords, these amendments of law, but the fact of the matter is that when we have fall into two, possibly three, groups. I shall start with transposed directives and regulations previously, they the group that has been the subject of the recent have excluded the preambles and the recitals, as they speeches from noble Lords—the interpretation of EU have excluded aspects that are in the treaties rather retained law. The amendments tabled by the noble 1121 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1122
[LORD GOLDSMITH] different ways we may look at validity in the future, in Baroness, Lady Bowles of Berkhamsted, and the noble particular by reference to the origins of particular Lord, Lord Krebs, particularly require that the preambles instruments. I said then, and continue to think, that it and recitals should be capable of being taken into is important to study carefully what the noble Baroness account when it comes to interpreting EU law. They said when we return to that issue. are completely right, as are other noble Lords who I would ask the noble and learned Lord the following have spoken, that at the moment under EU law the question, which emerges from the amendment which recitals and the preambles are an important part of has been put forward. There appears to be a potential the interpretation. I have had the privilege of appearing inconsistency between two parts of the Bill. Paragraph 3 on a number of occasions before the European Court of Schedule 1, which we looked at in discussing general of Justice, both in my capacity as a government Minister principles of EU law the other day, states: and before that as a lawyer retained to argue cases, “There is no right of action in domestic law on or after exit and it absolutely is the case that, unlike the techniques day based on a failure to comply with any of the general principles that we apply when we come to interpret British of EU law”. statutes, the preambles and recitals are very important. The Minister will recall that I spoke then as to why we It therefore would be significant that they should be thought that was the wrong approach and that general capable of being applied in the interpretation of EU principles of EU law should continue to be capable of retained law after exit day. If they were not it could founding causes of action, including, potentially, for lead, for example, to the result that a piece of law disapplication of executive acts or legislation. We will applied and interpreted before exit dayusing the preambles no doubt come back to that as well. I referred for and recitals could be interpreted differently after exit example to the Walker case, in which the general day, and that would be damaging to legal certainty. principles were relied on in relation to pension rights. I very much doubt that the Government intend that Members of the LGBT community will be very unhappy there should be any difference, and I believe they if they learn that the Government’s intention is that intend that the preamble and recitals should be capable this principle should not be capable of being applied of being used in the interpretation, as they so often to their benefit afterwards. are. The question then becomes whether it is important We see that statement in paragraph 3 of Schedule 1, and right to make reference to that specifically in the but on the other hand the provisions to which the Act as it goes forward so that everybody, including the noble Baroness has drawn attention appear to say that public, know that application of the recitals and preambles the question of validity can be considered by reference to these EU instruments is something that Parliament to the general principles, which looks as if it is not just intends. Where I might part company a little with the a question of interpretation but that somehow the way that Amendment 58 is drafted is in its apparently general principles have an impact on the validity. I requiring that the interpretation should be in accordance would like to understand from the noble and learned with the recitals and preambles.The recitals and preambles Lord, now or afterwards, just how those two provisions should certainly be taken account of and proper regard sit together. Is it intended that validity should still be should be given to them, but it is possible that requiring determined by reference to general principles of EU that they be interpreted in accordance with the preambles law? If so, how does that square with the provisions in is going a little too far. No doubt the Minister will the schedule? have something to say about that, as I hope he will The noble Baroness explained the purport behind have something to say about the principle. Amendment 60, and I look forward to hearing what The principle, which I support from these Benches, the Minister has to say on that issue too. 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 Lord Brown of Eaton-under-Heywood (CB): My important part of understanding that legislation. I Lords, what I am about to say is designed to help— have no doubt that the noble and learned Lord, Lord although whether it achieves that may of course be Mackay of Clashfern, is right that the process of doubted. The Government have stated that the central transposition which is intended by Clause 1 does not object of the Bill is to ensure that the law on the day involve excising the recitals and preambles. What will after Brexit is the same as on the day before. But it is come in is everything that is in that which is defined as also the Government’s stated aim—one I would hope EU retained law at the moment, but that does not is shared by all, or certainly the great majority, in the quite cover the point about whether there is a risk that Chamber—that the EU law retained is certain and somebody might think that they are not allowed to, or clear rather than left in very considerable doubt. I should not, take account of the recitals and preambles. would suggest it is that which explains provisions such Of course, that depends on what the judges say. That is as paragraph 2 of Schedule 1, relevant to the question the principle in relation to the first part of this group of whether the general principles of EU law are retained, of amendments. I support the need to be clear that which features in the provision under Clause 6(3), those recitals and preambles can be taken into account, which we are now discussing. Indeed, it also explains but will listen very carefully to what the Minister has Clause 4(2)(b), which we talked about a few days to say on that. ago—although it seems like weeks—and the non- incorporation of the charter, although I shall show 4 pm very considerable restraint and not go further down The second part of the group is a little different. that road. We keep straying on to it—although I had The noble Baroness, Lady Bowles of Berkhamsted, thought that, at least for Committee stage, we had put made an important speech last week in relation to the it to bed some while back. 1123 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1124
The amendments in this group, I suggest, will not that has no impact on the operation of the scheme, we assist in clarifying and making certain and predictable should continue, pursuant to Clause 6(3), to amend in the application of retained EU law. I therefore cannot an appropriate fashion. support them. Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to Baroness Young of Old Scone (Lab): My Lords, I unmodified law from Clause 6(3). But one effect of support Amendment 58. This comes down very simply that would be to cast doubt on the operation of to the fact that, as a result of the discussion we have Clause 6(6) and the ability of modifications to retained heard today, the recitals and preambles either are EU law to displace the binding effect of pre-exit brought across automatically—in which case, some of CJEU case law. That uncertainty, we suggest, should the statements made in the debate in the other place be avoided. on this issue, which were quite lengthy and considerable, Can I come on to the issue of recitals? need to be re-examined, because my impression of those was that there was no guarantee of preambles Lord Goldsmith: I intervene on the Minister before and recitals being brought across—or they are not he moves on to that topic. If the words that the noble clearly brought across, in which case we need something Baroness’s amendment would remove— in the Bill that does so. So I would be very grateful if the Minister would clarify, first of all, whether he “so far as that law is unmodified on or after exit day”— believes the Government are convinced that they are remain in, would it still be the Government’s position already clearly brought across. 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 The Advocate-General for Scotland (Lord Keen of precisely? Is it a question of looking at a law and Elie) (Con): My Lords, first of all perhaps I may saying that part of it has been modified, and therefore observe that, pursuant to Clause 3 of the Bill: we no longer look at EU retained law to interpret what “Direct EU legislation, so far as operative immediately before is left—or is it that, once it has been modified a bit, it exit day, forms part of domestic law on and after exit day”. means that it is no longer subject to that interpretative That brings over direct legislation, including recitals, technique? It would be very helpful to have that as I believe a number of noble Lords have understood. clarification. The Government’s position is that, as long as retained EU law remains as part of the UK statute book, it is Lord Keen of Elie: I am not sure that I am entirely essential that there is a common understanding of following the noble and learned Lord’s point. Toexpress what the law means. Therefore, to maximise certainty, it this way, where after exit there is a modification to any question as to the meaning of retained EU law retained EU law but that modification does not go to will be determined in the UK courts, in accordance the substance of the retained EU law, which would have with the CJEU’s case law as it exists immediately to be addressed on a case-by-case basis, Clause 6(6) before the UK leaves the EU. That is set out in thenallowsforthecontinuedinterpretationof thatretained Clause 6(3). Any other starting point would lead to a EU law by reference to Clause 6(3), notwithstanding change in the law and risk creating considerable the relevant modification. That is why I sought to give uncertainty, if not confusion, on exit day. the example of a modification that simply took out However, we do not want to fossilise that case law. the reference to an EU agency and substituted a UK That is why, pursuant to Clauses 6(4) and 6(5) of the agency. Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to Lord Goldsmith: I hope that the noble and learned depart from that situation when employing their own Lord and the Committee will permit me to intervene, jurisprudence. The test would be that which they apply because it is important to know how this is going to be at the present time in departing from their domestic interpreted. I do not see in these words anything about jurisprudence. a proviso where the modification does or does not go While it would be fair to say that the Constitution to the substance of the directive. What my question Committee has not always seen eye to eye with us on had in mind was that, if you had a directive that has 10 the Bill, on this particular issue it described the provisions in it, for example, and if one of those was Government’s position as clear and sensible. Retained modified, or indeed nine of them, when it comes to the EU law will of course be modified after exit day by one provision that has not been modified, does one Parliament, and indeed by the devolved legislatures. It treat the proviso as applying or not applying? In other is right and sensible that it should no longer be interpreted words, is that therefore modified retained EU law, in line with retained EU case law, following those which cannot be interpreted in accordance with retained modifications. But, in other cases, it may be appropriate case law? that, even where there has been some modification, it should continue to be interpreted in that same way. Lord Keen of Elie: With respect, it could all be What we have in mind is a situation in which a interpreted with reference to retained case law.Clause 6(6) modification simply changes a reference, for example says: from an EU commission or agency to a UK public “Subsection (3) does not prevent the validity, meaning or body, but leaves the substantive scheme of the retained effect of any retained EU law which has been modified on or after EU law exactly as it was before. That is the purpose of exit day from being decided as provided for in that subsection if Clause 6(6): to ensure that, where there is a modification doing so is consistent with the intention of the modifications”. 1125 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1126
[LORD KEEN OF ELIE] Baroness Bowles of Berkhamsted: I thank the noble So the point is being made that, even where there has and learned Lord for his response. I appreciate that been modification post exit to retained EU law, you some of what I was trying to outline was complicated, may still find yourself on a case-by-case basis deciding and made more so by it no doubt being difficult to that you can construe that retained EU law, listen to. I am not convinced that the point is nailed notwithstanding the modification, in accordance with with regard to the recitals of directives, not least Clause 6(3). If the noble and learned Lord wishes to because there is no provision to publish those in discuss the matter in some detail later, I am quite Schedule 5. If you are going to rely on them in court, happy to take him up on that. you will have to adduce some other evidence, whereas regulations are going to be published. That lies behind Lord Goldsmith: That is why I did not stand up, the amendment that I tabled to Schedule 5—it is for because I think that it is better if we discuss it outside advance information, if you like. the Committee. I think this is a technical fix—I may be wrong, and I just bring that to noble Lords’ attention. I think I understand what has been said about Clause 6(6) in Lord Keen of Elie: So be it. And there was me that, if the modification is trivial then, for that bit of thinking that I was being clear. the legislation, nothing changes and another bit in the I shall touch on Amendments 58 and 59 as well as same legislation would probably remain unaffected. Amendment 60, which are really concerned with what So, within an individual piece of legislation, the impact is being brought over into retained EU law. I reiterate of the recitals might have been removed from some the point that I made earlier that, pursuant to Clause 3, bits and not from others. I think that is what was being we bring over into retained EU law all the recitals and said, and that is where the noble and learned Lord, other material in the EU regulations and directives for Lord Goldsmith, was trying to get some clarity. Maybe the purposes of interpretation and then application—a we can take that offline to get that clarity. I am still not point made by my noble and learned friend Lord quite sure who makes that decision in Clause 6(6), and Mackay of Clashfern earlier. If I may say so, that is whether it will be something that appears when we get reinforced, although perhaps not quite as patently as the schedule modifications or whether the courts and some noble Lords would wish, by Clause 6(3), which others will be left trying to decide it for themselves. refers to the requirement to address the matter in This may be something that we have to return to accordance with any retained case law and retained but, with the Committee’s agreement, I beg leave to general principles of EU law. The retained case law withdraw my amendment. includes a body of case law that is establishing and has established clearly the principle of interpretation by Amendment 57 withdrawn. reference to the relevant recitals in the directives and Amendments 58 to 64 not moved. regulations. Amendment 65 had been withdrawn from the Marshalled Indeed, as the noble and learned Lord, Lord List. Goldsmith, observed, when addressing the matter in the context of the ECJ, as it was, or the CJEU, one Clause 6 agreed. finds that these recitals sometimes play a very material part in the way in which they interpret and apply Amendment 66 legislation that is drafted in a rather—if I may say so, Moved by Baroness Jones of Whitchurch without being pejorative—looser way than is perhaps the norm in domestic statutory provision. 66: After Clause 6, insert the following new Clause— “Maintenance of EU environmental principles 4.15 pm (1) Public authorities must have special regard to and apply the principles set out in this section. The noble Baroness’s amendments are, to that extent, (2) The principles in this section are— unnecessary, because all these recitals are brought into (a) the precautionary principle as it relates to the retained EU lawand, pursuant to the principles established environment, in the case law of the CJEU, they will be brought into (b) that preventive action should be taken to avert account when the court comes to interpret the relevant environmental damage, provisions. This point was raised in Committee in the (c) that environmental damage should, as a priority, be other place, and the then Bill Minister undertook to rectified at source, write and place a letter in the Library to elaborate on (d) the polluter pays principle, and and explain this point. I took the step of inquiring about the locus of this draft letter. Like much (e) that environmental protection requirements must be integrated into the definition and implementation correspondence from government, it has to go through of policies and activities, with a view to promoting a number of iterations and a number of departments, sustainable development. but I am told that the final draft will be in my box at (3) The principles in subsection (2) may be called the the weekend—I look forward to it. Pursuant to that “environmental principles”. undertaking, I will ensure that a copy of the relevant (4) In carrying out their duties and functions arising by letter is placed in the Library of this House in order virtue of this Act, public authorities must take account that Members may see it and consider the position in of the public interest in— more detail before Report. (a) promoting sustainable development in the United I hope, in the light of that, noble Lords will see fit Kingdom and overseas, not to press these amendments at this stage. (b) preserving, protecting and improving the environment, 1127 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1128
(c) the prudent and rational utilisation of natural Agency to impose fines on water companies found to resources, have polluted rivers and required them to repair the (d) promoting measures at the international level to damage and invest in preventive measures for the deal with regional or worldwide environmental future. problems, and combat climate change, These principles have existing legal status.For example, (e) guaranteeing participatory rights including— in a recent case Friends of the Earth successfully (i) access to information, argued that the Northern Ireland department had (ii) public participation in decision making, and failed to consider the precautionary principle when it (iii) access to justice, refused to issue a stop notice to prevent sand extraction in relation to environmental matters, and in Lough Neagh. I hope that I have pronounced that (f) acting in a way that takes account of available properly. As a result partly of that argument, the scientific and technical data. department had to reconsider its position. (5) When making proposals concerning environmental These principles of environmental law are not new, protection, public authorities shall take as a base a high nor are they unique to EU law. They are also found in level of protection, taking account in particular of any new development based on scientific facts. a number of international environmental treaties to which the UK is a signatory.These include the Convention (6) Subsection (7) applies in any proceedings in which a court or tribunal determines whether a provision of on Biodiversity, the Convention on Climate Change primary or subordinate legislation is compatible with the and the Convention on the Law of the Sea. Currently, environmental principles. the UK gives effect to these international obligations (7) If the court is satisfied that the provision is incompatible through its membership of the EU as these principles with the environmental principles, it may make a are contained in Article 191 of the Treaty on the declaration of that incompatibility.” Functioning of the European Union. This is why, although we have strong support for the concept of enhancing biodiversity as set out in Amendment 67, in Baroness Jones of Whitchurch: My Lords, this the name of my noble friend Lord Judd, in the spirit of amendment stands in my name and those of the noble transposing rather than refining the legislation we Lords, Lord Krebs and Lord Deben, and the noble have tried to be true to the existing principles and Baroness, Lady Bakewell of Hardington Mandeville. objectives in Article 191, which do not yet include Amendment 108 stands in my name and I have added enhancing biodiversity, although, of course, we wish my name to Amendments 112 and 113 in the name of that they did. the noble Lord, Lord Krebs. This group of amendments goes to the heart of the When a similar amendment to Amendment 66 was concerns about the potential impact of the Bill on debated in the Commons, it received strong support. established environmental safeguards in the UK. On In fact, Dominic Raab MP, who was then the Minister earlier amendments we rehearsed the gap in environmental of State responsible for courts and justice, stated: protection that might occur if the transfer of legal “Leaving the EU will not diminish our commitment to rights is limited in the way that we have spelled out, environmental principles. Indeed, it is an opportunity to reinforce particularly in its reliance on case law. The Minister them”.—[Official Report, Commons, 15/11/17; col. 501.] may put forward a similar argument in answering So we believe that by restating the principles in the Bill these questions but it would be useful to have it on the by inserting this proposed coherent new clause, the record so that we can look at it in detail after the Government can avoid the ambiguities which result debate. from relying excessively on case law and make good Amendment 66 tackles the issue of environmental their promise to enhance environmental protection. principles head on and spells out the core principles More recently, the Government have announced that are needed to achieve the Government’s promise that they plan to publish a new national policy statement of equivalence in environmental standards. These are: setting out the environmental principles which will the precautionary principle,the preventive action principle, underpin future policy-making. In theory, we welcome the principle that environmental damage should be this initiative as it would allow us to build on the rectified at source, the polluter pays principle and the existing principles, making them relevant and durable principle that environmental protection should be for the longer term—including, of course, the importance integrated into policies to promote sustainable of biodiversity. This would be a document for the development. To avoid any uncertainty these principles future. However, we have not seen a draft of it yet; it should be part of domestic law on day one, the public would then need to be subject to full consultation should be able to rely on them, the court should apply before becoming a reality. In addition, its legal status them and public bodies should follow them. These would be less clear as it could be changed by government principles matter. For example, as we have discussed, without a parliamentary veto. In the meantime, as the the precautionary principle is important in the application date for leaving Europe grows nearer, it is important of pesticides, where the impact of neonicotinoids on that we protect the existing principles that have stood bee populations was suspected but not backed by us in good stead for so long. That is what Amendment 66 scientific certainty. It created enough time and space seeks to do. for further research to be carried out which confirmed The next amendment in my name is Amendment 108. that the ban was justified. It addresses the serious threat to air quality, which we Similarly, the polluter pays principle, which has were rehearsing just a moment ago, by seeking to been used, for example, in the application of the water ensure that the EU ambient air quality directive 2008, framework directive, has enabled the Environment the other directives listed and the UK regulations that 1129 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1130
[BARONESS JONES OF WHITCHURCH] seems that we have got tied up over how we can have transpose it remain the law of the land. We know this firm policy in the future if we are to leave the European is an issue of huge public concern, with public health Union. implications. That concern is reflected by the courts, My amendment simply sanctions, I hope, what my which have consistently ruled that the Government are noble friend said. She referred very strongly to biodiversity in breach of the ambient air quality directive; and, of because it seems such a crucial issue. It needs very course, we saw the latest episode of this in the High specific and precise attention; it needs to be covered Court last week, when the Government’s latest plans very specifically in the legislation we are considering. were declared unlawful. The Government’s reluctance to comply with the directive is a worrying indication of their likely approach to implementing air quality 4.30 pm standards after the UK leaves the EU. Our amendment aims to put certainty into the withdrawal Bill so that I will not take up a lot of time in Committee existing standards and oversight remain in place. because I am sure that everybody in this Chamber understands the urgency of the biodiversity situation, Currently, the air quality standards regulations are where we are facing challenges on so many fronts. secondary legislation; under the current terms of the However, I underline that we are considering leaving a Bill, they could be amended or repealed with minimum situation in which there is a strong position in the parliamentary scrutiny. In any event, the regulations European Union. The Joint Nature Conservation will lose much of their effectiveness unless the courts Committee put it unequivocally: are required to enforce them, in line with the principles “The EU plays a crucial role in developing policy and legislation established by case law of the Court of Justice of the to protect the environment and meet its objective for sustainable EU. Anyway, once the UK leaves the EU, the European development. The EU has specific targets for biodiversity conservation Commission will have no authority to bring infringement with legislative protection for key habitats and species”. proceedings against the UK. Without this amendment, The committee makes two other points: air quality protection is under threat, either by repeal “The EU and global biodiversity targets are partly delivered or amendment—or, more subtly, through the removal through a range of legislative measures, which place obligations of any effective enforcement mechanism. The air quality on Member States to protect biodiversity and the natural environment. regulations could cease to be effective on Brexit day. It The EU and Member States have shared legal competence—shared is therefore vital that the directive and the Air Quality responsibility—in forming and implementing legislation for the Standards Regulations 2010 are transposed in full, environment”. with no weakening amendments. To guarantee public The third point I take from what the committee said is protection in the future, these air quality laws should that it underlines the great importance of the directives be given the status of primary legislation, so that on the conservation of wild birds and on the conservation future changes require a full Act of Parliament. It is of natural habitats and wild fauna and flora. also vital that establishing EU case law applies in the I would like specific reassurances from the Minister interpretation and enforcement of these laws in the on these points. We cannot leave this to be worked out UK. somehow or other in the future. We need to have Finally, as explored in Amendments 112 and 113, arrangements in place in the Bill. I emphasise again there needs to be a robust and independent governance that the principal amendment in this group has my full structure that deals with accountability and enforcement. support. We believe that the package set out in Amendment 108 is vital to delivering effective regulation and enforcement of air quality standards in the future. There are a Lord Wigley (PC): My Lords, I will speak to number of other amendments in this group that explore Amendment 317 in this group. Before I do so, I different aspects of environmental protection and warmly endorse the comments that have already been enforcement. We support these amendments, but I made on the importance of getting the environmental will leave those who have tabled them to make their dimensions right as we leave the European Union, if case in more detail. In the meantime, I beg to move we have to. Amendment 66. Amendment 317 proposes a new clause on common frameworks for environmental protection, touching Amendment 67 (to Amendment 66) on a number of matters that have already been discussed. I hope that the Minister, when responding to this Moved by Lord Judd group of amendments, will see Amendment 317 as a 67: After Clause 6, after (4)(b) insert— constructive proposal for a possible way forward as we “( ) protecting, enhancing and encouraging have to change our relationships as we move out of biodiversity,” Europe. This amendment goes to the very heart of why I am both a Welsh nationalist and a European federalist, and those two attachments are in no way incompatible. I believe that every community should Lord Judd (Lab): My Lords, I endorse every word make as many decisions as possible that affect them that my noble friend said. There is nothing more for themselves, and where they cannot, for practical important, it seems to me, for the qualitative future of reasons—where, by their nature, some decisions have the United Kingdom than the ground covered by these to be taken on a broader basis—those communities amendments. What kind of Britain do we want to should have an effective voice in that wider decision-taking leave to our children and grandchildren? Therefore, it process The environment is one such issue. 1131 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1132
Environmental protection is a devolved matter. joint agreement on common frameworks that provide However, while the UK is a European Union member minimum standards and shared high-level objectives state, most environmental law in the four countries of are therefore needed. the UK is guided by common frameworks set at EU I now turn to the role of the Joint Ministerial level. This amendment would require the four Committee.Most environmental issues are transboundary Governments to work together on proposals to establish in nature and represent a shared concern across the minimum common environmental objectives and four nations. In a welcome sign of progress, the UK standards. As such, I hope it will appeal to all parts of and devolved Governments reached an agreement in the House. UK-wide frameworks will be needed to October 2017, via the Joint Ministerial Committee on establish areas of common policy across the UK, even EU Negotiations, to develop and agree common in areas of devolved competence. Crucially, this frameworks in some of these areas post Brexit—to amendment would insist that devolved legislatures are ensure the effective management of common resources equal stakeholders in the forming of those common that cross boundaries between the four nations. policy areas. I will cover the principle of UK-wide For the sake of our shared environment, failure to frameworks, and my major concerns about Clause 11, recognise the importance of agreeing a set of common when we get to that point of the Bill. Today, I will frameworks in these areas would be of great concern. focus on the substantive relevance of this issue to the We urgently need the UK and devolved Governments environment. to commit to working more openly and transparently together, to secure the best possible system of First, I will say a word about whycommon frameworks environmental governance across the four nations are needed. No area of policy will be more affected by following the UK’s exit from the EU. This should be the outcome of the common frameworks debate than informed by a robust assessment of the environmental the environment. According to analysis by the Institute implications and a transparent process that allows for for Government, there are more than 140 distinct public consultation and input from stakeholders across policy areas where EU law intersects with devolved the UK. powers. The greatest number of these relate to the environment, which is unsurprising given that the EU In conclusion, I ask the Minister to accept that, in frameworks have been widely created for environmental the absence of a replacement set of jointly agreed policy purposes. frameworks, environmental co-operation across the four nations would be undermined. Secondly, I ask the Approximately 80% of environmental laws in the Minister to confirm that the views of the JMC will be UK, including in the devolved nations, have some subject to public consultation and parliamentary scrutiny. basis in EU legislation. Transboundary co-operation Finally, will the Minister provide clarity as to what and common standards are widely recognised as important will be the process with respect to pursuing common for the effective protection of the environment and the frameworks once the JMC analysis is published? prevention of unfair regulatory competition. There are persuasive reasons for seeking to maintain common Lord Krebs (CB): My Lords, I rise to move standards across the four nations of these islands post Amendments 112 and 113, which are in my name and Brexit. Such frameworks would provide a set of minimum those of the noble Baronesses, Lady Jones of Whitchurch common standards and should be jointly agreed between and Lady Byford, and my noble friend Lady Brown of the UK and devolved Governments. They will be Cambridge. important in a range of areas, such as the conservation of wildlife on land and at sea, environmental assessment The Countess of Mar (CB): My Lords, I hate to and the co-ordination of action to address air and interrupt my noble friend but he is not moving his water pollution. amendment now; he is speaking to it. The same applies to the amendment in the name of the noble Lord, I shall give some examples of common frameworks. Lord Wigley. EU legislation relating to the natural environment— including the birds and habitats directives—currently helps to underpin effective environmental action by Lord Krebs: I thank my noble friend Lady Mar for providing minimum common standards for site and that correction. As well as speaking to my amendment, species protection across the four nations. This facilitates I shall be supporting Amendments 66 and 108, with the creation of a more ecologically coherent network which my name is associated and to which the noble of protected sites than would otherwise be the case. Baroness, Lady Jones of Whitchurch, has already Such an approach will still be needed for the UK spoken. outside the EU, helping to ensure that actions in one It was very encouraging to hear the Prime Minister jurisdiction complement, and do not counteract, reaffirm in her Mansion House speech on Friday that: conservation outcomes across these islands. “As we leave the EU we will uphold environmental standards and go further to protect our shared natural heritage”. Similarly, the common frameworks provided by EU As the Chief Medical Officer for England made clear legislation—relating to the assessment of the likely in her annual report published last week, our own environmental impacts of plans, programmes and health is intimately dependent on the health of our projects—mean that consistent mechanisms are in place environment. We all recognise that the improvements for assessing transboundary effects as well as allowing over past decades in the UK’s environmental standards for public participation and transparency in decision- have been driven primarily by EU laws that cover making across the four nations. Co-operation and roughly 80% of environmental legislation in this country, 1133 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1134
[LORD KREBS] should consult on incorporating EU environmental and a key part of that has been enforcement. There is principles into primary legislation, support decision- no point in having high aspirations unless you have an making by the watchdog or watchdogs and ensure that effective mechanism to ensure that you deliver. As a the principles inform decision-making more broadly. member of the European Union, we have been subject Fourthly, there should be absolute transparency about toscrutinyandenforcementbytheCommission,ultimately the environmental governance functions that are through infraction notices. As I pointed out at Second transferred to the new watchdog or watchdogs by Reading, 46% of the judgments handed down by the creating a publicly available register of functions. European Court of Justice on UK infringements since 2003 related to the environment. 4.45 pm The Government have accepted that after Brexit Similar amendments received widespread support there will be a governance gap and that therefore a in the other place and I hope the Minister will confirm new green watchdog will be required to hold the that the Government are listening and serious about Government to account on their environmental supporting the Prime Minister’s ambition for our performance. The purpose of Amendments 112 and environment as well as the Chief Medical Officer for 113 is to ensure that this new green watchdog is in England’s ambition for our health. place by exit day and that it will mirror as closely as To add a footnote, this morning in the EU Energy possible the current arrangements that we have as a and Environment Sub-Committee, we saw an audit member of the EU. report from the Commission on the UK’s compliance When the Energy and Environment Sub-Committee with the landing obligation. This is to prevent fishermen of the EU Select Committee, of which I am a member, hauling in specimens that are too small for the market; took evidence on this, the very strong view was that a they are supposed to be thrown back. The audit report new watchdog would be essential. I quote from our said: report: “The majority of UK-registered vessels are not subject to “The importance of the role of EU institutions in ensuring controls that effectively enforce the landing obligation at sea”. effective enforcement of environmental protection and standards, It also said—this is quite amusing: underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, “On February 3rd 2016 a Marine Scotland aircraft detected a cannot be overstated ... The evidence we have heard strongly vessel discarding a large quantity of what appeared to be pelagic suggests that an effective and independent domestic enforcement fish. However, the camera footage was unable to confirm the mechanism will be necessary, in order to fill the vacuum left by species and consequently no infringement proceedings were initiated”. the European Commission in ensuring the compliance of the That underlines the point about external scrutiny of Government and public authorities with environmental obligations our environmental standards. ... It will be important for any effective domestic enforcement mechanism to have both regular oversight of the Government’s In the absence of this much anticipated but, equally, progress towards its environmental objectives, and the ability, much delayed consultation, what is the Government’s through the courts, to sanction non-compliance as necessary”. current thinking on the nature of the new green watchdog? I can imagine that in his reply at the end of this debate Will it, for example, have the power to fine the the Minister will say that we are going out to consultation Governments? If not, what kind of sanctions and on a new green watchdog. Indeed, the Secretary of powers does the Minister envisage the watchdog having? State for Environment, Food and Rural Affairs has How will its independence be assured? Are there existing already indicated that there will be a consultation on a models of watchdogs which might be taken as templates? new statutory body early in 2018. Just checking my How will it relate to existing regulators such as the clock, “early” is moving quickly beyond us. In the Environment Agency, the Scottish Environmental Committee debate in the other place, Dominic Raab Protection Agency, Scottish Natural Heritage, Natural said on 15 November 2017 that the consultation was England, Natural Resources Wales and the Northern “coming imminently”. If one of my students at Oxford Ireland Environment Agency? I look forward to the said that her essay would arrive imminently but nearly Minister’s answers to these and other questions. four months later it had not appeared, it would be a case for disciplinary action. Monsieur Barnier has Baroness Bakewell of Hardington Mandeville (LD): repeatedly said that the clock is ticking, so can the My Lords, I support Amendment 66, to which I have Minister assure the Committee that the new green added my name; Amendment 67 in the name of the watchdog will be in place on a statutory basis by exit noble Lord, Lord Judd; and Amendment 67A in the day? name of my noble friend Lady Miller of Chilthorne Amendments 112 and 113 set out a number of key Domer. These amendments are key to ensuring that requirements for the new watchdog. First, as I have the protection of our environmental heritage is enshrined already said, it should be in place by exit day.Secondly— in law in the Bill. This group of amendments is crux to this resonates with what the noble Lord, Lord Wigley, the environmental agenda and must be included in the has just said—the UK Government and the devolved Bill. I fully support the thorough introduction to the Administrations should work together to ensure that amendment of the noble Baroness, Lady Jones of the watchdog functions apply to the whole of the UK. Whitchurch, and I am grateful to Rescue, the Chartered If there are different watchdogs for the four countries Institute for Archaeologists, the Environmental Policy of the UK, they should operate according to the same Forum and Greener UK for their briefings. principles and should be established jointly and in the As we all know, on 29 March 2019 key pieces of same timescale. Thirdly, as we heard from the noble legislation such as the environmental impact assessment Baroness, Lady Jones of Whitchurch, the Government and strategic environmental directives will be transposed 1135 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1136 into domestic law, with the aim that planning policy Baroness Bakewell of Hardington Mandeville: I thank will continue to function as currently. However, the the noble Countess for that intervention, but I believe Bill does not directly reference some important overarching I have the right speech and I hope she will bear with principles established in the EU treaty, potentially me until I get to the end. weakening environmental protections which underpin With this in mind, it is important that the UK planning-led archaeology. This process is difficult—not retains at least an equivalent provision for environmental least because of the perceived weakness in the Bill, protectionindomesticlegislationandpolicytocompensate which may prevent its stated ambition of ensuring a for the loss of EU funding to the historic environment smooth transition and avoiding a black hole in the with domestic funding, ensure free movement of skilled statute book on the day of the UK’s exit next year. and accredited archaeologists between the EU and For the Chartered Institute for Archaeologists and the UK— the Council for British Archaeology, the key issues are: the de facto weakening of environmental principles The Countess of Mar: My Lords, I am sorry to enshrined in the European treaty, which are not within interrupt the noble Baroness again, but this is an the scope of the Bill as proposed; the loss of supranational amendment about the environment. We are asked in jurisdiction to provide opportunities to bring legal Committee to pay our attentions to the particular challenges on environmental principles; the uncertainty amendments that we are looking at. I have looked over how the Government will use so-called Henry VIII through the list of amendments and none of them powers to amend technical aspects of EU law when applies to architectural heritage. Will the noble Baroness transposed, to ensure that they remain workable in a kindly let noble Lords who wish to speak on the domestic context; and the uncertainty over how previously environment have their turn? held EU powers—brought back to the UK after Brexit— will be reserved to devolve to Scotland, Northern Ireland and Wales. Baroness Bakewell of Hardington Mandeville: I am sorry that the noble Countess is frustrated with me In February, during the recess, I went to Cyprus for trying to link the environment to archaeology.However, a holiday. During the week, my husband and I visited Article 191 aims for a “high level” protection of the the marvellous and numerous archaeological remains environment and is based on “preventive action” in on the island, including Aphrodite’s Temple, Aphrodite’s which, Rock, the Tombs of the Kings and the main archaeological site in Paphos. The Cypriot Government have spent “environmental damage should as a priority be rectified at source and that the polluter should pay”. considerable sums of money over many years excavating these sites and preserving the wonderful mosaics uncovered The principles, including the polluter pays principle, and other historical artefacts. I was struck by the the prevention principle and the precautionary principle, number of non-Cypriot archaeologists who had funded have all been the fundamental base of environmental— and worked on the sites over the decades to bring the history to life for future generations. Many of these Lord Wigley: I am sorry, my phone will not switch came from the UK. off. Tobe clear on how important archaeological heritage is, we must turn to the survey of adults in England Baroness Goldie (Con): I am sure that the noble called Taking Part Focus On: Heritage. This was a Baroness will realise that the interruption was not a DCMS survey of 2017 demonstrating both the cultural personal allusion to her speech or its content. and economic value that heritage provides to our society and community. Some 74.2% of adults visited Baroness Bakewell of Hardington Mandeville: I am a heritage site in 2016-17, with a remarkable 94.2% of sure it was not. adults agreeing that it is important to them that, These principles have been the fundamental base of “heritage buildings or places are well looked after”. environmental protection and the way archaeology is Another report, Heritage and the Economy 2017, by carried out in the UK. The rejection by a very close Historic England—again reporting English statistics— margin in the other place last November of Amendment shows that, 67, which aimed to adopt these principles into UK law “heritage directly contributed £11.9 billion in GVA”, with other EU legislation, leaves historical environment equivalent to 2% of our national GVA, and that: protection vulnerable to future changes in British policy. This is not something that the public who visit “Heritage tourism generated £16.4 billion in spending by domestic and international visitors”. archaeological sites would welcome. The Welsh equivalent showed that it contributed 1.6% of The weakening of environmental principles enshrined GVA and Scotland’s Historic Environment Audit 2016 in the environmental treaty has captured the attention showed that heritage contributed, of many in the sector in recent weeks and has promoted serious questions about environmental protections after “in excess of £2.3 billion to Scotland’s economy”. Brexit. A significant amount of time was spent debating the importance of environmental protections and there has been universal acceptance of their value, with The Countess of Mar: My Lords, I am sorry to cross-party consensus on a need for statutory protections interrupt the noble Baroness, but these amendments for these principles being evidenced. Discussions are are about environment, not heritage. Does she have under way towards including a new environmental her right speech? protection Bill, to which the noble Lord, Lord Krebs, 1137 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1138
[BARONESS BAKEWELL OF HARDINGTON MANDEVILLE] 5 pm referred, to be brought forward before exit day. Given Lord Deben (Con): My Lords, I rise to be helpful to the legislative timetable and the scope of Bills that the the Minister because I think Amendment 66, to which Government hope to bring forward, surely it would be I have added my name, merely ensures that we do what better to enshrine the principles of Amendment 66 in the Government have said they want to do. I speak as the Bill, rather than leave to chance bringing forward chairman of the Committee on Climate Change because an environmental protection Bill prior to exit day. this amendment, as the noble Baroness mentioned, refers The Government’s 25-year environment plan is to international obligations beyond the European Union, wide-ranging and encouraging. Those in the natural one of which is the Convention on Climate Change. environment sector have been encouraged by changes I am particularly interested in this because for four in the Government’s stance that have occurred since years I was Secretary of State for the Environment at a the new Secretary of State took office. However, the time when the British did not have a great reputation Government’s drive towards streamlined planning has for environmental action. I have to say to the Committee demonstrated how easy it is to introduce provisions that I found the presence of EU law, particularly on that—apparently unwittingly—undermine historical bathing waters and water quality, extremely helpful. It environment protections. We must be vigilant to ensure was not always easy to convince my colleagues that we that damage does not happen by default. really did have less good drinking water than much of I turn lastly to the impact of the large number of the rest of the European Union. They rather took my Henry V powers contained in the Bill. mother’s view, which was that the reason that people had bottled water in France was because their ordinary Noble Lords: Henry VIII. water was unacceptable. There was a general view, much promoted in the Daily Telegraph, that there was Baroness Bakewell of Hardington Mandeville: Sorry, no need for improvement. I have to say that there was Henry VIII powers. They have caused such concern in need. There was even more need, as Surfers Against the environment protection world and elsewhere. The Sewage made clear,to do something about our appalling withdrawal Bill’s aim is to convert EU law into UK bathing water standards. We were, after all, in much of law wherever practical and appropriate. Clause 7 confers the country pouring unreformed ordure—I do try major executive powers on the Government to bring very hard to use phrases that the Committee will not about legal and institutional changes that would normally object to—into the sea. We were able to change that, be the subject of detailed parliamentary debate and not, I may say, without very considerable difficulty scrutiny. These powers are incredibly broad and would and arguments about the price and cost of doing it. It be able to achieve anything that could be done through was within a context of EU law, and not just precise an Act of Parliament, including repealing or amending pieces of law but the context in which we accepted existing pieces of primary legislation. It is estimated certain standards and values to which we could refer that around 800 to 1,000 statutory instruments are when it came to making our own legislation. likely to be needed to address deficiencies in retained I have looked at this amendment very carefully, and EU law through these powers. I look forward to this I cannot find anything in it to which the Government with trepidation. could possibly object. If my noble friend is busy The Environmental Policy Forum has made a number looking it up at the moment, no doubt he may find of extremely valid points, including supporting the something, but I do not see anything to which the House’s Constitution Committee’s recommendations Government could object. There is nothing here which that the Bill should require Ministers to demonstrate does not pass from EU law into our law, and that, good reason for exercising Henry VIII powers and after all, is the purpose of the withdrawal Bill. My that the sifting committee’s powers be decisive in calling noble friend has sometimes been somewhat sharp with for the affirmative procedure for a statutory instrument me in suggesting that I am asking for something more, as it deems necessary. The EPF also recommends that so I have not put my name to those things which have the Bill should require the Government to establish a asked for something more—mind you, I might well new body or bodies to fulfil the roles and functions come back and ask for that—but this amendment asks currently undertaken by the EU institutions to ensure for nothing more than that which has been promised effective governance of environmental law and an by the Prime Minister, by the Secretary of State for appropriate level of independence and authority. The Defra and by other Ministers: namely,that our standards new body should be funded by and directly accountable would be at least those of the European Union were we to the UK Assemblies and Parliaments and, in a to leave the EU. This merely puts down that contention. similar way, to the National Audit Office. Frankly, I think that my noble friend, if he were to It is vital that the UK and devolved Governments say that we cannot have this amendment—I very much work together throughout the passage of the Bill to hope that he is not going to say that—has to explain, ensure that common frameworks can be established to first, what in it is additional to the mere passing of the set minimum environmental standards across the UK law from the EU into our national law. Secondly, he at or above current EU standards. This should allow must explain why it is unacceptable to the Government each country to set higher standards should they wish for this House to repeat what the Government have to do so. This process should be jointly initiated to themselves said: not an unreasonable thing, I think, allow for genuine shared ownership. I fully support all for it to do. the amendments in this group and I hope that the I said earlier that I rose to be helpful, and I meant it. Minister—although probably somewhat weary of the There is very considerable concern throughout the Committee’s deliberations—has his listening hat on. country, not just from environmental organisations 1139 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1140 but from civic society generally, that the Government Viscount Ridley (Con): Will my noble friend explain will not be bound in the future, were we to leave the something to me? He has just said “passed into our European Union, in the same way as they are bound law”, but there is confusion, particularly in relation to now within the European Union. There is widespread what the noble Baroness, Lady Ludford, said, about concern, felt not just by those who are opposed to our environmental law. This is surely about environmental leaving the EU but also by people who voted to leave principles, which are really quite different. They are, because they were promised that leaving would not on the whole, aspirations, with which many of us may make a difference, in any sense, to these things. I want agree, but they are not part of the legislation as such. to be helpful because, if we do not do this, very large numbers of people will vote with their feet because Lord Deben: I fear that my noble friend is not right they will not trust any Government. I do not trust any on that, for two reasons. First, all environmental law Government on these issues. I do not just mean that I in the European Union has been intimately connected do not trust this Government: I have not trusted with the principles upon which it is based. Indeed, you previous Governments. I have fought with all of them cannot understand the law unless you understand the one way or another on these principles. That is why principles. That has always been the situation. All we this amendment is so important. are saying is: let us make our law understandable by The vital issue is that the environment needs to have the principles to which we have assented and to which, a framework within which people can have confidence we are told, the present Government wish to continue that their interests will in fact be met. In the past, to assent. The distinction between principles and law we have had the framework of the European Union. is not correct in this case. Secondly, even if he were The Government say we can have just as good a right—and I am not sure that he and I would always framework outside the European Union—well, this is agree on the same aspirations as far as the law is the framework, and there is no reason why they should concerned—it is very peculiar for the Government, refuse it. having said that this is what they want, not to be In the Pope’s encyclical Laudato Si’, he makes the prepared to put it into the law, because these are the absolutely fascinating statement that climate change is very words to which the Prime Minister and other in fact to be seen as a symptom of the way human beings Ministers have referred. This is a distinction without a have dealt with each other and the planet upon which difference in this case. we live. He goes on to express his desire that we should Since my noble friend has raised it, I say that when learn again how we should behave not only to each we voted on these laws—some of which I did as a other but also to the world. The very best series of Minister—we did so on the whole package, which was explanations of how we should behave are to be found the principles as adumbrated in the law itself. It is not in this amendment. They have been honed and argued possible to take the legal bits out without the principles, over the years in the European Union, and I spent a as he would suggest, because it is the principles that good number of years of my life debating them both enable one to interpret what the law says. That has in the Environment Council and in the Agriculture always been accepted. The Government, in their Council. statements, certainly gave every impression that that was what they wanted to do. I very much hope that whatever Baroness Ludford (LD): Before the noble Lord, my noble friend says about additionality— Lord Deben, finishes, does he agree that one essential EU measure is the urban wastewater directive of 1991, Lord Pannick (CB): I will to try to help the noble without which we would not have built the Thames Lord out. It is not just what the Government say; it is super-sewer? I am less reticent than the noble Lord what is in the Bill. Clause 6(3) makes it absolutely because, on a weekly basis, untreated raw sewage flows clear that retained EU law must be interpreted, into the Thames right outside this House. We are “in accordance with … retained general principles of EU law”. already nearly two decades overdue in implementing that directive, and without EU law we would not be The Bill recognises it. doing so at all. Lord Deben: I am so pleased to have been supported Lord Deben: I am very glad to acknowledge the by the noble Lord. I was rather afraid that he was noble Baroness’s point, but I have tried hard not to going to find something that I had got wrong in the stray into other things because I want the Minister to law and I would not like to argue with him, although I accept this amendment. If he does not, I have a have done on occasions, as he knows, because I do not fundamental question to ask him, because I do not like lawyers to be left to themselves. But he has, with think the Government are serious about what they legal elegance, expressed what seems so obvious for have promised. If they are, they cannot oppose this anybody who has dealt with European law. amendment, and if they do not oppose it, why on I say to my noble friend is that one of the problems earth can they not accept it? If the Minister tells me we all have is that those of us who have worked in the that we do not need it because of this, that and the European Union, who have argued these laws line by other, he will have to go through each item and explain line, and who have worked with our neighbours to do how it is totally passed into our law without this this wonderful thing of bringing countries together to amendment. He will also have to explain it in such a have common laws, encounter the constant difficulty way that it can be understood by all those people that those who do not like the European Union do not outside this House who are worried and concerned understand the way it is done. Very often, the reason about this change from our membership of the EU. they are opposed to it is because they have never 1141 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1142
[LORD DEBEN] what we catch and we import 80% of what we eat. If understood the brilliance of the mechanisms that we we do not continue to deliver EU standards, whether have there. We may lose them—I say “may”—but we landing obligations or something else, there is always do not want to lose the environmental protection that now the economic threat of the fact that we export they have given us. 80% of what we catch. Sanctions could be imposed, so we have to deliver. Lord Rooker (Lab): The last time I checked, the My question follows what the noble Lord, Lord environmental directorate of the EU had taken 34 cases Krebs, said. When we have left the EU, who is going to against the UK Government, of which it had won 30. do the audit? It quite clearly cannot be left to the UK I did not want to interrupt the noble Lord, who was an Government, because this independent audit has absolutely first-class Environment Secretary. I know discovered that the four countries have been failing that because later I worked in planning with John Prescott, anyway. It is crucial between England and Scotland— as he was then, and we were always referring back to because most of the fishing fleet is based in Scotland—that the good work that he had done. we comply. Who is going to perform that function? I would have asked the noble Lord: when he was Will it be an independent body with teeth or are the Environment Secretary, how often was he assisted, in UK Government saying that we will carry on as we his dealings with the Treasury in delivering on our did before? Carrying on as we did before is a failure, legal obligations, by the threat of infraction? The and the EU might well use economic sanctions against power to fine the Government that the Commission us if we are not delivering. So there is the threat. The has does not exist anywhere in the UK. The Supreme Government are well aware of this. This is no surprise Court does not fine the Government. I discovered, when to them, because it has been in the reports of EU I was at MAFF for two years, Defra for two years and Committees of this House—I think about 25 have now the Northern Ireland environment office for a year, been delivered. Nothing new has come out in recent that the threat of infraction was a powerful sanction discussions that has not been in those reports. I wonder to the Treasury. When you were arguing about the whether the Government have been reading them. money to do something—which we were required to do anyway but resources were short—the case to the Baroness Byford (Con): I shall follow the noble Treasury was, “Enable us to do this, we will do a deal Lord, Lord Rooker, because I put my name to with our budget and everything else, because paying a Amendment 112, which calls on the Government to fine is an absolute waste of public resources”, and that look at the independent body. When I spoke at Second is what happened. Reading I said that it was essential that the proposed Most of our environmental protection today is as a new body should have teeth, and I am very grateful to result of being in the EU. Ministers wanting to deliver the noble Lord, Lord Rooker, for reinforcing that have been helped to do so by the threat of infraction. point. The questions that I posed then—I shall not So the thing that is missing from all this—although repeat the excellent contribution of the noble Lord, the noble Lord, Lord Krebs, touched on it—is the Lord Krebs, because that would test the temper of the governance and delivery of the sanction. If it is not Committee to say the least—were: who staffs it? Who delivered, what is the sanction? If it is not money, it pays for it? Who interprets it? What relationship does will not work. The evidence is there. It has to be it have with other agencies? It is key that the new money. It cannot be the chair or board of whatever is independent body that we are promised should be set set up saying to the Minister, “We don’t like what up in time, and Clause 112 sets down a timescale. It you’re doing. You’ve got to do something different”. may be that the Minister is not able to accept the The first time they use the nuclear option, they will amendment as it stands, but it is hugely important that not be on the board the following year unless their we realise the strength of feeling about getting this independence is locked in solid in legislation. The body in place in time so that the laws will be regulated threat of a sanction of money is pretty important. in the way that they have been traditionally—so I Without that, the principles cannot be delivered. totally accept what the noble Lord, Lord Rooker, said. The noble Baroness, Lady Jones, mentioned the 5.15 pm 25-year environment plan earlier. I hope I misunderstood I do not want to speak for too long but I want to her, because she is very good on her brief, but I think add to something that the noble Lord, Lord Krebs, she indicated that there was no 25-year environment raised in the Select Committee this morning. It is the plan. I thought it was out: I have read it and was fastest way of getting something from a Select Committee looking forward to responding to it. The Government to the Floor of the House that we have discovered. It are looking to go out to consultation on it. Is the is a relevant issue because again it is about an external Minister able to give the Committee any direction on body auditing what the UK is supposed to deliver. In the timing of that? Will it be a UK consultation or an this case, it is the audit report delivered in June 2017 England one with the devolved assemblies looking at on the landing obligations of the UK. This issue is it from their point of view as well, and will the new pretty fundamental. The report stated said that landing body reflect this? It is hugely important that it is a UK obligations were not being respected by UK fisherman. one because that is the law that, hopefully, we are I massively support UK fisherman, by the way, who taking over from the EU in the way it is now. are in a very dangerous occupation—but all through On the question of feedback on the environment the audit report the EU auditors found that we were side, there will be very great differences, I suspect, not delivering. Rates of non-compliance were high. between how England responds and how Scotland, There were low reporting rates. We export 80% of particularly, and Northern Ireland and maybe Wales do. 1143 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1144
There are some very real and slightly wider issues here. not accept that, many years down the line, we now know, I think it comes to the amendment to which I added because of the meta-analysis by Göttingen University, my name because I was clearly very unhappy that we among other research, that the introduction of genetically had no timetable. We have no idea whether the body modified crops has not led to triffid-like explosions, will have teeth or who will impose it—and, importantly but has led to a reduction in the use of pesticides, on for me, who will pay for it and how independent the average, by 37% across the globe? That is something I person paying for it will be. These are questions that think she would support. we need answered today.I have others, but that is enough from me. Baroness Young of Old Scone: Perhaps I could Baroness Jones of Whitchurch: I will just clarify that continue our long-standing discussion with the noble I did not mention the 25-year environment plan. I Viscount outside the Chamber, to avoid the Committee referred to a new national policy statement setting out having to listen to us going through that. The important environmental principles, which I think is a different point is that the principles helped us get a framework document. Otherwise, I agree with everything the noble for thinking about the issues. That was very important Baroness said. at a time when that meta-analysis was not available. Another example is our current position on the Baroness Young of Old Scone: My Lords, I share common agricultural policy. It was introduced before the anxiety of the noble Baroness, Lady Byford, about some of these environmental principles were refined the timescales, particularly in respect of the consultation and used in European legislation. As a result, we are on EU environment principles and the establishment now in the ridiculous position where the polluter pays of a new independent environmental watchdog. A principle would have helped us, as taxpayers and as large amount of environmentally related legislation water company customers and payers, avoid paying has to be got through over the next few months or a farmers twice. We are paying water companies to pay year: a fisheries Bill, an agriculture Bill and a huge farmers to stop doing something that, as taxpayers, we wall of statutory instruments on environmental law are paying farmers to do. The polluter pays principle, are coming towards us. There are something in excess had it existed when the common agricultural policy of 800 instruments in total, the last I heard, with a was first set in place, would have been a hugely valuable considerable number of those being environmental. way of preventing that very wasteful situation. I am anxious, along with many other noble Lords, about whether there is air time for this consultation before the legislation that needs to follow to establish Baroness Miller of Chilthorne Domer (LD): I shall the new watchdog. I would press the Minister to tell us speak to my Amendment 67A, which sets food production about the plans for the consultation. within the context of Amendment 66. I heard what I also share the anxiety of the noble Lord, Lord the noble Baroness, Lady Jones, said at the beginning Rooker, about whether there will be real welly behind and I completely appreciate that Amendment 66 is the regulator. I was chief executive of the Environment predicated, or modelled, on the original frameworks. Agency, the environmental regulator, which had to But I want to draw out what is implicit in proposed help negotiate the urban wastewater treatment directive new subsection (4)(c), which concerns, infraction proceedings that produced the Thames tideway. “the prudent and rational utilisation of natural resources”. In spite of wanting and willing there to be an example Part of that is about farming and food production, elsewhere in the world of a body established by a which we touched on when we debated animal sentience. Government that is capable of fining its own Government But the importance of food security, the quality of the —and hence its own establishing power—I have not food available to us and the price at which that food been able to find one. I hope, however, that Ministers comes will be founded on the sort of principles that we will look assiduously at producing that result. choose to put into the Bill. I shall give a couple of In the spirit of the noble Lord, Lord Deben, with examples that illustrate this very well. the great hope that I am not going to be his unrefined The first of these would be pre-emptively dosing ordure, I will also briefly help the Committee with intensively farmed animals with antibiotics. Is that another couple of examples about why the environmental reckless; is it against the precautionary principle? Yes, principles are important. When I was chairman of it is. It has led to massively increased incidences of English Nature, the debate about genetically modified antibiotic-resistant bacteria in both animals and humans. crops was raging. There was huge public concern and Of course, that has had huge cost implications. the Government were in an impossible position, with We have often talked in this House about the the multinational American-based companies pressing implications of agriculture for climate change. There very hard to have GM crops introduced. There was huge is a choice coming up for agriculture, which contributes alarm about the release of triffid-like plants resistant an estimated 11% to total global warming potential. to all known weed-killers and capable of killing insects There are better ways.Weare looking at no-till agriculture, stone dead at a distance of 100 paces. But the reality is which will enable the soil to retain more carbon, and that had there been an uncontrollable release of GM so on. I will not detain the Committee with all the details. crops, it would have been more than unfortunate for biodiversity, agriculture and food security. The amendment rightly talks of, “the prudent and rational utilisation of natural resources”. Viscount Ridley: Let me give the noble Baroness the We have taken for granted for a long time that we have chance to get her voice back by intervening on what possibly the best grass-growing conditions in the UK: she knows is one of my favourite subjects. Would she good soil and sufficient rainfall. The amendment is 1145 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1146
[BARONESS MILLER OF CHILTHORNE DOMER] Lord asked that we mirror European law as it stands. important because it says we must not go on taking Hot off the press came an announcement yesterday—I any of this for granted. The issue of food production thank the European Environmental Bureau for this—with is something the public are rightly very concerned the headline, “Precautionary in principle, flawed in about. Food security is another issue. The principles in fact: European Commission review accepts environmental the Bill may seem a little esoteric, but when you bring groups’ criticism of chemical regulation”. it down to food—what is on the shelves of your local The noble Lord, Lord Gardiner of Kimble, whom shops or, in the worst-case scenario, is not on the I am pleased to see is in his seat, knows how I have shelves of your local shops—the public will appreciate campaigned tirelessly about Roundup and glyphosate. how right this House would be to debate and insist on I cite some of the points that have been made. There these environmental principles being in this Bill. was a five-year review of the REACH regulation—the manner by which chemicals are regulated in the European The Earl of Caithness (Con): I shall speak to Union. These are usually single chemicals, not mixtures. Amendments 112 and 113 and support what has been The licensing of mixtures depends on each country said by the noble Lord, Lord Rooker, and my noble individually. It says: friend Lady Byford. It will come as no surprise to the “However, the Commission review highlights problems with Committee, because I have talked on this subject in substance registration dossiers, the failure to correctly apply the our debates on the environment. I reinforce what my crucial precautionary and burden of proof principles and specific noble friend Lady Byford said: the new body that is to issues with REACH processes, particularly evaluation, restriction hold the Government to account must be independent and authorisation”. and properly financed. I suggest to my noble friend In the case of glyphosate, Monsanto has consistently the Minister that it should be financed by more than hidden research that has shown that it is carcinogenic one department; if it just comes out of Defra’s budget, and affects the kidneys and liver. It is only now coming that will not be satisfactory. It needs to tie in with all out after huge freedom of information requests in the the other departments,which need to contribute financially United States. The European Union has chosen to towards it. ignore all that evidence; it has not asked Monsanto for it. As a result, we are being exposed to glyphosate; 5.30 pm something like 90% of the population has glyphosate in their urine. We do not really know what the health Lord Deben: Is it not also important that the funding effects are.Wedo know that the effects on the environment should in some way be protected? One of the real ways are not good. I therefore support the amendment, but to overcome the toughness of independence is by I also ask that we do not mirror the behaviour of the funding being restricted. There needs to be some kind REACH organisation and that we tighten up our own of exterior auditor that ensures that the funding is principles and make sure that we get it right. sufficient for the job. Baroness Featherstone: My Lords, I rise to speak to The Earl of Caithness: That is a very valid point. Amendment 108, to which I added my name. We have Whatever Government are in power have always found become used to relying on the EU to oversee our funding bodies an extremely difficult thing to do on a compliance with directives—including those highlighted continuous basis. in Amendment 108—and that what we commit to is I was going to come to my noble friend Lord Deben delivered. We are tested and, if we are found wanting, and say just a couple of things to him. He should read there are consequences. However, as the Secondary what my noble and learned friend Lord Mackay of Legislation Scrutiny Committee said in its 19th report: Clashfern said on the previous amendment, on principles. “The UK’s withdrawal from the EU raises questions about the Also, when he was Secretary of State he took on an effectiveness of oversight and enforcement of these commitments improving situation—and, of course, he forgot to mention in the longer term”. that we were world leaders in combating the damage As the noble Lord, Lord Krebs,said, without enforcement, to the ozone layer. what is the point of the law? We are speaking to Amendment 67, tabled by the Given that in Amendment 108 we are talking about noble Lord, Lord Judd. I am sure we all agree with a range of pollutants, including the five main air him on the question of biodiversity, but whether it is pollutants, the ambient air quality directive—which relevant to have that in the Bill is debatable. I disagree sets legally binding limits for concentrations in outdoor with him, however, on how good the EU has been air of major air pollutants that impact public health, about biodiversity. If he is giving so much praise to the such as particulate matter and nitrogen dioxide—and EU, why has biodiversity continued to decline? Why other directives, this is a really crucial issue. We know have the wild birds he mentioned continued to decline? from Defra that some of the existing mechanisms that It is largely due to EU policies, particularly the common we currently rely on to scrutinise whether we are agricultural policy. One benefit from getting out of the keeping up to the environmental standards to which EU is that we will be able to do something quite we are signed up are not being carried across. positive and new for biodiversity and our wildlife, but As has been raised by other noble Lords, the that will mean a divergence from Europe. Government said when they presented the 25-year development plan, “Don’t worry, we are setting up a The Countess of Mar: My Lords, I support new body to oversee all of that”, but what will it Amendment 66 and the words of my noble friend comprise? To what standard will it be judging? What Lord Krebs. I put in a note of caution here. The noble powers will it have? If the consultation on all that is 1147 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1148 yet to start, what is the timetable for it to be up and the way archaeological remains are currently protected running? And where is it in the Bill? Surely we need it by the laws relating to planning and by the planning in the Bill. Maybe the Government will come forward policy guidance. The guidance which is at present with an air quality Bill, but how on earth will that get followed in general works quite well but a policy does into our law in time? not have the strength of legislation, and this is surely This amendment makes certain that we cannot fall the time to work in that direction. For these reasons I foul of not having thought of something or set up new support Amendment 66 and would welcome an assurance arrangements in a timely manner. It means that those that either this amendment will be accepted or that a of us who are concerned in this regard can cease our government amendment will be introduced on Report concern. The Government must not leave us in a which would meet these concerns. situation where there is any chance or ability to lessen— whether by accident, desire or timing—the environmental Baroness Jones of Moulsecoomb: My Lords, as a protections that we currently enjoy, and I hope that passionate environmental campaigner, I am distressed the Minister can give us assurance on that. by the Government’s attempt to cut out social and On Amendments 66, 112 and 113, I simply say that, environmental protections from the Bill. Their record if the Government are sincere in their stated commitment on these issues is not particularly good and so I hope —as the noble Lord, Lord Deben, said—to uphold all that they will rethink their opposition to these the environmental commitments that we are signed up amendments. As an environmental campaigner I have to and to uphold the spirit of the transfer of EU law had quite a few brushes with the law, but I have never into UK law, they should have absolutely no hesitation had much to do with lawyers. Here in your Lordships’ in supporting all these amendments. House we are very fortunate to have a considerable number of noble and learned Lords who give us the Lord Renfrew of Kaimsthorn (Con): My Lords, I rise benefit of their expertise. I have noticed that they to support Amendment 66 and, in particular, to indicate often disagree, and very strongly. Therefore, surely my concern that these environmental principles should keeping these issues in the Bill would save an awful lot apply as much to the historic environment—including of legal time and legal argument and would be better the built environment—and to the archaeological record for the Government. I say that in a spirit of total as to the natural environment. It may be that—and I helpfulness and support. Therefore,I urge the Government think that the noble Countess, Lady Mar, would prefer to rethink their opposition to these amendments. That it—for the sake of clarity, a separate amendment should seems axiomatic to me given that they promised to be introduced on Report to deal with archaeological keep EU law as it is and to bring it all over. As the and historical concerns. noble Lords, Lord Deben and Lord Whitty, mentioned, It is now well established that the scheduling of the Government promised to do that. I ask them please ancient monuments and the listing of historic buildings, just to do it. valuable though they are for the most conspicuous sites, are insufficient to protect rural landscapes and Baroness Brown of Cambridge (CB): My Lords, I historic town centres. Indeed, planning authorities support Amendments 66, 108, 112, 113 and 317, but regularly make the provision of prior archaeological noble Lords will be glad to hear that I will not speak to investigation a condition for the granting of planning them. However,I would like to speak to Amendment 186 consent for developments, whether for roadworks, in the name of the noble Lord, Lord Adonis, to which motorways or new buildings. I have added my name. This amendment is something Archaeological concerns are enabled and can be of a change of subject as it is about the EU Emissions met by the application of environmental principles, Trading Scheme and seeks to keep the UK in the EU which are codified in Article 191 of the Treaty on the ETS. The clean growth strategy says that the Government Functioning of the European Union. These principles are considering the UK’s future participation in the provide safeguards against adverse policy change and EU ETS post Brexit. It would certainly appear possible provide a basis for legal challenge. At a time when the to stay in the EU ETS. Iceland, Liechtenstein and Government are rightly encouraging the building of Norway participate in it. For a range of reasons it new housing—which is to be welcomed when proper certainly appears to be a good idea. safeguards apply—it is important that damage to the On Friday, the Prime Minister told us that she wants historic environment should be avoided where possible to secure, and that the polluter should pay when mitigation is “broad energy co-operation with the EU”, needed. They should, for instance, fund the necessary and to protect the single energy market on the island archaeological excavation and the publication that of Ireland and the UK’s participation in the EU should necessarily follow archaeological fieldwork internal energy market. This will be easier if we are in undertaken in advance of development. the EU ETS. The clean growth plan anticipates increases The Council for British Archaeology and the Chartered in electricity imports from Europe via interconnectors. Institute for Archaeologists support Amendment 66, This will be easier and fairer on UK generators if we as well as Amendments 112 and 113, and would are in the EU ETS. welcome a statutory footing in United Kingdom law The global direction of travel is one of growth in for these principles. The Minister in his reply may give global carbon markets. The larger they are, the more assurance that such an amendment is not necessary. efficient at delivering decarbonisation at least cost. Such an assurance could, indeed, give some comfort The EU ETS and the Chinese market are the two to the archaeologists who are concerned about these biggest global markets, so I suggest that we might issues and who do not wish to see any weakening in want to stay in the EU ETS. If the UK continues to 1149 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1150
[BARONESS BROWN OF CAMBRIDGE] As my noble friend Lady Byford indicated, on make good progress in reducing emissions compared 11 January, the Prime Minister launched the 25-year with our European neighbours, which I sincerely hope environment plan. That sets out our determination to it will, we will have credits to sell in the EU ETS as the leave our environment in a better state than how we carbon price rises, bringing income to the Exchequer. found it and outlines steps to achieve this. Launching That is another good reason to stay in the EU ETS. the plan, the Prime Minister stated: The accounting for our current carbon budgets is “Let me be very clear. Brexit will not mean a lowering of based on the fact that we are members of the EU ETS, environmental standards”. so to retain the same level of ambition in emissions Of course, we are committed to internationally recognised reduction, we would need to reset the levels of the environmental principles, as set out in the Rio Declaration fourth and fifth carbon budgets in legislation. It is not on Environment and Development in 1992, known as a huge challenge to redo the accounting but I think it the Rio principles. This declaration includes the ideas would just make it slightly easier if we stayed in the behind a number of the environmental principles listed EU ETS. I would like to ask the Minister to tell us in Amendment 66, including sustainable development, more about the Government’s intentions. Should we the precautionary principle, the polluter pays principle not stay in the EU ETS? and access to environmental information. These, as well as other principles, are also features of multilateral 5.45 pm environmental agreements to which the UK is a party. Lord Cormack (Con): My Lords, I wish to make For example, the OSPAR Convention—the Convention two very brief points. First, I want to endorse entirely for the Protection of the Marine Environment of the what my noble friend Lord Renfrew said. The points North-East Atlantic—and the Gothenburg Protocol he made on the archaeological issues are of very great on air pollution both apply the precautionary principle. importance indeed, and it is crucial—I speak as a Although these principles are already central to fellow of the Society of Antiquaries and a former government environmental policy, they are not set out vice-president of that body—that these points are taken in one place. That is why the Secretary of State for into account. Environment, Food and Rural Affairs announced on My other point, in a slightly lighter vein—but still 12 November our intention to create a new comprehensive with serious intent—is to support my noble friend policy statement setting out our environmental principles. Lord Deben, who made a splendid speech. As he The new policy statement will draw on current EU made it, I could not help but remember an Adjournment and international principles and will underpin all debate in the other place, over 30 years ago, when the our future policy-making. The Secretary of State for late, great Reggie Bennett mentioned the problems Environment, Food and Rural Affairs also announced that he had enjoying his favourite sport of swimming on 12 November our intention to consult on a new, off the south coast. He said, “Mr Speaker, there are independent and statutory body to advise and challenge very few beaches onto which I can now go and swim. government, and potentially other public bodies, on All I can do is go through the motions”. That just environmental legislation, stepping in when needed to brings home, in a very simple but important way, that hold these bodies to account and to be a champion for we owe a lot to directives that have come from Europe the environment. and been brought into our laws. My noble friend Lord In reply to the noble Lord, Lord Krebs, my noble Deben referred to that in his speech; he played a very friends Lady Byford and Lord Caithness and other important part in that regard. It is easy to bash noble Lords, this year we will consult widely on the directives—we have all done it; I have done it—but details of the announcement from the Secretary of collectively, we owe a great deal to what has come out State for the Environment—I apologise to noble Lords of Europe on the environment, and been sustained that I cannot be more specific about a date at the and endorsed in this country. moment. That consultation will explore the precise functions, the remit and powers of the new environmental body, and the nature, scope and content of the new The Minister of State, Department for Exiting the statement on environmental principles. This will be European Union (Lord Callanan) (Con): My Lords, the the start of a detailed conversation with stakeholders. issue of environmental protection was widely debated There are many stakeholders in this area and it is during the Bill’s passage through the other place. Of important to gather their views before coming to any course, it has now been widely debated, with great ability, decisions, which is why I cannot be more definitive at by many noble Lords here. We have already had a this stage on timescales. thorough debate on the important topic of animal sentience and I am grateful to noble Lords for their Lord Krebs: My Lords, is the Minister familiar with amendments on that issue and on the wider issue of Einstein’s theory of relativity? The reason I ask is maintenance of EU environmental principles. because if you do the sums, I reckon that there is just Although I welcome the sentiments behind these over 12 months to go between now and the proposed amendments—Amendments 66 and 108, in the name date of exit from the European Union. We are talking of the noble Baroness, Lady Jones; Amendments 112 about a three-month consultation period—starting and 113, in the name of the noble Lord, Lord Krebs; heaven knows when, because we still do not know Amendment 67, in the name of the noble Lord, Lord when the document for the consultation will be Judd; and those in the names of the noble Lords, Lord launched—then we have perhaps another nine months Adonis and Lord Wigley, and the noble Baroness, to pass an environment Bill through Parliament, if it is Lady Miller of Chilthorne Domer—I believe them to to be a statutory body, and then perhaps another six be ultimately unnecessary, for reasons I will now set out. months to set up the organisation, fund it and appoint 1151 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1152 the staff. That sounds like a minimum of 18 months to Lord Callanan: If a new amendment is put forward, go into 12. But of course, as Einstein pointed out, if of course we will look at it and consider its legal you can travel at a speed faster than 186,000 miles per implications. I can give that assurance. second, you can stretch time, so I hope that the Minister On Amendment 112, our starting point is that the is proposing to invoke Einstein’s theory of relativity in new statement of principles and the environmental ensuring that the body will be in place by the proposed body should cover England and environmental matters date of exit. that are not devolved. To respond to the point made by the noble Lord, Lord Wigley, if the devolved Lord Callanan: I will take that as an observation Administrations would also like to take action on rather than a question. these issues, we are open to co-designing the proposals Amendments 66 and 67 would prejudge the outcome to ensure they work more widely across the UK. We of the forthcoming consultation by setting requirements would need to take account of the different government in legislation now. The result could be that we need to and legal systems in the home nations, as well as the amend the legislation after we have considered this different circumstances in the different parts of the important input from stakeholders. I will say a few UK. This amendment risks compromising consideration words in response to my noble friend Lord Deben’s of these important issues as well as the wider devolution points in a second. I am disappointed that he thinks settlement by requiring the UK Government and devolved that I am sometimes a little sharp with him; obviously, Administrations to consult jointly on UK-wide proposals we do not often agree on many things, but I hope that for governance and principles. I am as transparent as I can be with him. On Amendment 113, the secondary legislation made Amendment 66 also goes further than the existing using the powers under Clause 7 will be subject to principles set out in EU and UK law today.In particular, parliamentary oversight, using well-established procedures. it would introduce a new power for courts to declare This amendment would require us to make all the provisions in primary or secondary legislation to be regulations within one month of Royal Assent. This incompatible with the environmental principles. This would not allow time for stakeholder consultation and power does not currently exist in either EU or UK law. would also not allow sufficient time to make all the I will go a little further. The precautionary principle SIs—noting that affirmative SIs take longer than one is included in, for instance, the REACH regulation month to be laid and made. and the invasive species regulation, so it will be preserved Many areas of environmental policy are devolved. by the Bill in those areas. Similarly, the polluter pays This amendment would require the Secretary of State principle, referred to by a number of noble Lords, is to make regulations for all the UK, which would be referred to in the Water Environment (Water Framework contrary to the devolution settlement. It would also Directive) (England and Wales) Regulations 2017, which require the creation and maintenance of a register of will also be preserved by the Bill. EU case law on functions indicating who is responsible to perform chemicals, waste and habitats, for example, includes them before leaving the EU and who will be responsible judgments on the application of the precautionary after we leave the EU. This is a bit of bureaucratic principle to those areas, which will, likewise, be preserved procedure that has no added value. The SIs under the by the Bill. Bill will set which UK body will perform functions, The purpose of the Bill is to convert and preserve the such as the various regulatory functions. law so that after exit it continues to operate as intended. On Amendment 108, the UK Government laid This includes many of the directives referred to, such legislation transposing the national emission ceilings as the wild birds and habitats directives, as transposed directive in Parliament on 1 February 2018, demonstrating through domestic legislation. It is not appropriate for our clear commitment to improving air quality. This the Bill to introduce new powers of this kind. legislation implements ambitious, binding emission reduction commitments for 2020 and 2030 into domestic Lord Deben: My noble friend has explained that law. Air quality has improved significantly over recent some things are already there. Can he give me an decades, with the UK reducing emissions of all the undertaking that if we were in consultation to remove major five air pollutants. For example, since 1970 from this amendment anything that is additional to we have reduced emissions of nitrogen oxides by 69%, where the European Union now is, he would accept emissions of PM10 by 73%, and emissions of PM2.5 by this amendment? That is the issue. If we were to do 76%. Emissions will continue to reduce thanks to the that, would he accept the amendment? action we have already taken, and we will publish a Lord Callanan: I cannot give an assurance that we new clean air strategy in 2018 setting out how we will would do that. This is about legal certainty—taking a work towards our 2020 and 2030 commitments. snapshot of existing laws and transferring them into The Bill will ensure that the body of existing EU UK law as it is. It is not about creating new powers environmental law continues to have effect in UK law. within the Bill. There will be a further opportunity to It will be for Parliament—and, in some cases, for the discuss this when we publish our proposals for the new devolved legislatures—to make any future changes in body. legislation after we have left the EU. The power under Clause 7 will be used to amend legislation to ensure Lord Deben: I have not said “new powers” or talked continuedoperationof legislation,enablingtheGovernment about creating legal certainty. He keeps using that to continue to meet their environmental objectives. phrase. I merely said that if we amend this so that Amendment186,tabledbythenobleLord,LordAdonis, there is no additionality to what is already in European and to which the noble Baroness, Lady Brown, spoke, law, will he accept that as an amendment? would compel the Government to set out a strategy on 1153 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1154
[LORD CALLANAN] Case law and an array of legal authorities provide a the EU emissions trading system. This amendment is very narrow scope for Governments to exercise powers unnecessary given that our Clean Growth Strategy, of this type. As such, they cannot be used to make published last year,clearly sets out our guiding principles bigger, more substantive changes to equalities, human on reducing emissions. We are considering the UK’s rights or environmental legislation; if needed, these future participation in the EU ETS after our exit. We will likely arise from our withdrawal from the EU and remainfirmlycommittedtocarbonpricingasanemissions not from the effects of this Bill. They would therefore reduction tool, while ensuring that energy-intensive be made using the Clause 7(1) power where there is a and trade-intensive businesses are appropriately protected deficiency arising from withdrawal. In this way, both from any detrimental impacts on competitiveness. minor technical amendments and more substantial amendments will be subject to appropriate scrutiny Lord Adonis: The Minister said that the Government procedures. I hope the noble Lord is satisfied that the are “considering”; does that mean that they might Government remain committed to maintaining propose to continue our membership? environmental protections throughout the process of 6 pm leaving the EU, and that this will enable him not to Lord Callanan: This is a matter for the negotiations press this amendment. but it is certainly one of the factors we are considering. I turn to Amendment 317, tabled by the noble We will seek to ensure that our future approach is Lord, Lord Wigley, which proposes a new clause in at least as ambitious as the current arrangements. relation to common frameworks for environmental Furthermore, we have set ambitious emissions reduction protection. As noble Lords will agree, protection of targets framed by the Climate Change Act 2008; leaving the environment is a key concern and I am grateful to the EU does not change that. him for raising this important issue. Common approaches As I have said, the purpose of the Bill is to ensure are being considered in a number of areas, which will continuity and clarity in our laws without prejudice to help to provide the necessary environmental protections. the ongoing negotiations with the EU. I do not believe While the UK Government and the devolved this amendment would help to achieve that, and I hope Administrations sometimes make different choices on noble Lords will not press it. implementation of some policies, these common rules I shall say a word on Amendment 260, also tabled provide significant benefits, such as making it simple by the noble Lord, Lord Adonis, which seeks to restrict for businesses from different parts of the UK to trade the use of the Clause 17 power to weaken environmental with each other and enabling us to meet our international protection. I reassure the noble Lord of the Government’s obligations and, therefore, protect our common resources. commitment to maintaining our strong environmental This is pertinent to the environmental commitments protection as we leave the EU. As such, it is essential and protections that he rightly raised. that we ensure that the legislation which protects the The proposed new clause would require the environment remains coherent and tidy, so that it Government to publish consultation proposals for the continues to function effectively after our exit. replacement of European frameworks with UK ones. While the noble Lord’samendment is well intentioned, It is not the position of the UK Government, nor of we cannot accept it. This is because it would restrict the devolved Administrations, that the existing EU the Government’s ability to ensure that the consequences frameworks will be replaced by our own common of the Bill—most notably the repeal of the ECA—were frameworks in every instance. Noble Lords will be reflected throughout the statute book. It would also aware that the Government have been working closely restrict the Government’s ability to bring to an end with the devolved Administrations to determine where tidily the law and procedures that the Bill repeals. This future frameworks—legislative or non-legislative—will is a vital part of providing businesses and individuals be required when the UK leaves the EU. We are with the continuity and clarity needed for when the making good progress in constructive discussions, which UK leaves the EU. continue to be guided by the principles agreed at the I want to make clear that these powers may be used Joint Ministerial Committee on European negotiations only in consequence of, or in connection with, the in October 2017. coming into force of a provision of the Bill itself, not We hope, of course, to make further significant our withdrawal from the EU. Any changes made to progress over the coming weeks and months. However, environmental legislation to deal with the consequences I recognise the importance that this is not just a of provisions of the Bill will be purely to ensure that conversation between Governments. The increased the changes caused by this Bill are properly reflected scrutiny and input of Parliament, the devolved legislatures in the statute book. To continue to work effectively and wider stakeholders are therefore welcomed as and appropriately, the statute book must be tidy. It discussions on these issues move into a greater level of would not be proper, for example, that once the Act detail. As we move forward, this wider engagement has been repealed, there are still references to the ECA will include stakeholders interested in the environmental lingering in a ghostly way across the statute book. issues that the noble Lord has raised. I therefore hope This does not include adjusting important environmental my reassurances will enable him not to press his legislation where—although I cannot imagine how amendment. this would diminish environmental protection—there must be no uncertainty as to whether the Government Finally, I turn to Amendment 67A, tabled by the can make these statutes clear and up to date, ensuring noble Baroness, Lady Miller. I agree that it is vital to their effectiveness by reflecting the consequences of continue to support our fantastic farmers and growers this Act. as we leave the EU. The Government are determined 1155 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1156 to grow more, sell more and export more of our great other, different policies instead. This is one of the British food and drink. Indeed, such exports reached a benefits of Brexit; the common agricultural policy has record level of £22 billion in 2017. On 27 February, the been one of the worst things the European Union is Government launched a formal public consultation, responsible for. inviting views on a range of possible paths to a brighter future for farming. Health and Harmony: The Future Lord Wigley: On that very point, if there is going to of Food, Farming and the Environment in a Green be a new, overarching agricultural Bill, will the Minister Brexit describes how, in future, money can be redirected confirm that this would be applicable only to England, from direct payments under the common agricultural since agriculture is totally devolved to the three other policy—which are purely based on the amount of land nations? farmed—to a new, more appropriate system of paying farmers public money for public goods such as,principally, Lord Callanan: Yes, I believe Scotland, Wales and their work to enhance the environment and invest in Northern Ireland will be able to pursue their own sustainable food production. Other public goods which policies in this regard—which is another benefit of Brexit. could be supported include investments in technology and in skills to improve productivity. Amendment 67 (to Amendment 66) withdrawn. Theconsultationseeksviewsonthehugeopportunities thatexistforUKagriculturetoimproveitscompetitiveness: Amendment 67A (to Amendment 66) not moved. developing the next generation of food and farming technology, adopting the latest agronomic techniques, Baroness Jones of Whitchurch: My Lords, I thank reducing the impact of pests and diseases, investing in everyone who has contributed to this debate, and I skills and equipment and collaborating with other thank the Minister for trying to set the record straight farmers and processors. It also discusses the introduction on this issue. As the Bill has progressed, I have sat of an agriculture Bill that breaks from the common through many happy hours listening to lawyers around agricultural policy, providing the UK with the ability theChambermakingsomeverythoughtfulandconsidered to set out a domestic policy that will stand the test of contributions about the meaning of different parts of time. This could provide legislative powers, including the Bill. Very often, we non-lawyers end up wondering measures to create new schemes to promote and increase whether these things matter or whether it is a case of agricultural productivity and resilience. dancing on the head of a pin. Then, of course, you The Government are vigorously pursuing the measures begin to realise that they do matter and that some of needed to create a strong, profitable and sustainable these disagreements concern very profound and important future for food producers in this country. Our plans points for our future, and I have felt that again today. will be strongly influenced by information and evidence I have listened to a number of disagreements about from the very many stakeholders in the industry. I hope what is and is not in the Bill and what guarantees we my reassurances will enable the noble Baroness not to can and cannot have on the environmental principles press her amendment. that are already in the Bill. I have also listened to the guarantees that the Minister has attempted to give. Baroness Crawley (Lab): We understand that However, in addition to the views that have been aired consultation has yet to start on this new watchdog—that around the Chamber today, we have had our own legal is, on the type of watchdog that we want in the future. opinion, which says something very different—that However, perhaps the Minister would give us a clue as the principles that we are trying to outline are not to what the Government would like to see as far as readily embraced by and incorporated in the Bill. That powers for this watchdog are concerned. For example, is why we are trying to put them in with this new would they like the new watchdog to have the same wording. Those legal differences are not just about the sanctioning powers on Governments that the European environmental principles that we have been debating; Commission has at the moment, to which my noble they are also about the recitals and preambles that we friend Lord Rooker referred? dealt with in an earlier debate. Therefore, there are some profound legal differences that need to be resolved Lord Callanan: I thank the noble Baroness for her at some point. interest in this. I am sure she will understand that I The Minister kept saying that he wanted to provide cannot go any further at the moment. We hope to legal certainty, but I think that we are ending up launch the paper shortly, but all these matters—what with legal uncertainty, which is precisely what our powers it will have, et cetera—will be a matter for the amendments attempt to deal with. Amendments 66, consultation. 112, 113 and 317 give clarity. They spell out in detail in one simple form what the principles and the Government are attempting to achieve. You do not have to cross- Lord Hannay of Chiswick (CB): The noble Lord reference different parts here and there to see what has given us a trailer on the consultation for the new that might entail; the amendments spell it out in agricultural system. Will he tell us which of the elements simple detail. I think that there is a lot to be said for that he has referred to could not be introduced under proceeding on that basis as far as a layperson is the common agricultural policy as it is currently practised? concerned. As the noble Lord, Lord Deben, said, we are not asking for anything more; we are just asking Lord Callanan: As the noble Lord is aware, I said for what is in the existing provisions. We are just trying that the common agricultural policy is based on land-based to put it into language that most people would be able production subsidies, whereas we can now move to to understand and not tie it up in legal knots. 1157 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1158
Lord Deben: Perhaps I may ask a single question. Government’s air quality policies were unlawful and Would the noble Baroness be willing to sit down with that considerably more work needed to be done.Therefore, the Minister and go through this amendment, removing there is not much to be reassured about on that. anything from it which is not in the present law so that I do not wish to detain noble Lords much longer. he would have a chance to accept it on Report? If we can talk before Report, we will welcome that. Perhaps some of these consultations will have made Baroness Jones of Whitchurch: Yes, absolutely. In progress before then—I would be surprised but let us fact, I would go further than that. I am sure that we hope that that is the case—and that might influence could provide the evidence not only in terms of our position at that stage. We have a great deal to do, international obligations but in terms of Article 191, reading in Hansard everything that the Minister has where all these things can be found. However, let us do said, and perhaps we will come back to this at a future that trade and see where the gaps lie, and perhaps we date. In the meantime, I beg leave to withdraw the can make some progress on that basis. Certainly, we amendment. would welcome any opportunity to iron out some of the differences that appear to exist. Amendment 66 withdrawn. TheMinistermadereferencetothe25-yearenvironment plan—which is great—and to the PM speaking about Amendments 68 to 70 not moved. the need to have comparable environmental rights. Again, of course that is fine, but it is not the same as Amendment 70A having the legal certainty of something being in the Bill. Furthermore, I think I said in my opening speech Moved by Lord Wallace of Tankerness that the new policy statement on environmental principles 70A: After Clause 6, insert the following new Clause— will not have the same legal status as something that is “Equality and discrimination on the face of the Bill. Therefore, we need that further (1) The purpose of this section is to ensure that the withdrawal certainty. of the United Kingdom from the EU does not diminish The Minister made reference to a number of protection for equality in domestic law. consultations that are taking place. That is fine but we (2) All individuals are equal before the law and have the get only one stab at this Bill and we are being asked to right to the equal protection and benefit of the law. accept an awful lot of promises regarding things coming (3) All individuals have a right not to be discriminated on stream in months or, sadly, even longer—issues against by any public authority on any ground including that should be set out in the Bill. It is unfortunate that sex, race, colour, ethnic or social origin, genetic features, we are being asked to accept that there will be deadlines language, religion or belief, political or any other opinion, for these things. The noble Lord, Lord Krebs, referred membership of a national minority,property,birth, disability, age or sexual orientation. to Einstein’s theory of relativity, clearly making the point that these timetables are just impractical in (4) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (2) terms of getting everything consulted on and in place and (3) as they apply in relation to Convention rights by Brexit day. As I said, we would very much welcome within the meaning of that Act— the chance to work some of these things through so (a) section 3 (interpretation of legislation); that we can have more certainty. (b) section 4 (declaration of incompatibility); The noble Lord, Lord Wigley, made a very strong (c) section 5 (right of Crown to intervene); case for common frameworks. Again, I do not think (d) section 6 (acts of public authorities); that they are properly captured in the Bill, and I know that this comes up again in other sections of the Bill. (e) section 7 (proceedings); Quite frankly,I would have thought that the Government (f) section 8 (judicial remedies); would bite his hand off for the opportunity to sit (g) section 9 (judicial acts); down and talk about it. The noble Lord made a very (h) section 10 (power to take remedial action); compelling case. Certainly on the environment, the (i) section 11 (safeguard for existing human rights); need for those common frameworks, despite devolution, and is absolutely imperative. Therefore, I hope that there (j) section 19 (statements of compatibility).” can be further discussions around that as well. Lord Wallace of Tankerness (LD): My Lords, 6.15 pm Amendment 70A stands in my name and that of the The noble Lord, Lord Krebs, made a compelling noble Lord, Lord Low of Dalston, and the noble case for the watchdog. Without it, much of what would Baroness, Lady Lister of Burtersett. It seeks to insert a or would not be in this document and many of the new clause on equality and discrimination to ensure Government’s other commitments are meaningless. that the withdrawal of the United Kingdom from the We need a reference to that watchdog on the statute European Union does not diminish protection of equality book before Brexit day but I am not sure that we have in our domestic law. yet had a guarantee that that will happen. In their White Paper Legislating for the United The Minister talked about air quality and attempted Kingdom’s Withdrawal from the European Union, it is to reassure me that it was all in hand. I have to say fair to say that the Government set out very strong once again that I think the Government are completely commitments to continuing many of the equality laws complacent on that whole issue. He will know that a that exist. Indeed, on Monday evening the noble Lord, couple of weeks ago a judge ruled once again that the Lord Duncan of Springbank, in replying to a debate 1159 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1160 on family and employment law, gave a very forthright The right of equality builds on our common law and unequivocal commitment to retaining employment principle of equal treatment without discrimination law and things such as the working time directive after and is an important signifier of what kind of country we leave the European Union. On page 16 of that we want to be after we leave the European Union. It is White Paper we were promised that, similar to what was said in the previous debate on “all the protections covered in the Equality Act 2006, the Equality environmental protection. Many of the environmental Act 2010 and equivalent legislation in Northern Ireland will protection laws have come into the United Kingdom continue to apply once the UK has left the EU”. through the European Union. We have often built on As I said, the purpose of the amendment is to ensure them but, as we look forward, we want to be a green that that is future-proofed. country which values fairness and equality. It is fair to say that the relationship between the The amendment’s application would not be confined development of equality law in the European Union to Brexit-related legislation but will be an enduring and domestically in the United Kingdom is almost new right in United Kingdom law. It will strengthen what you could describe as symbiotic. There is no protection, for example, for children, who currently doubt that in many cases—I think this has already have limited protection from unjustifiable discrimination been aired in earlier debates—the minimum standards under our domestic law. Subsection (2) of the proposed set down by the European Union have been exceeded new clause in the amendment provides: by what has been brought in in the United Kingdom. “All individuals are equal before the law and have the right to On other occasions, the changes that have come about— the equal protection and benefit of the law… All individuals have for example, in 2003 with the expansion of protected a right not to be discriminated against by a public authority”. characteristics to cover sexual orientation and religion Although they sound similar they are different things. or belief and a subsequent extension to cover age—have Equality before the law means that the law must apply been as a result of European law.However,the extension equally to everyone, so outlawing laws that have a to cover goods and services saw our domestic law directly discriminatory purpose.However,equal protection overtake that of the European Union. Therefore, there and benefit of the law means that laws must not have a has been progress, but an important part of that has discriminatory impact or effect unless it is justifiable been our membership of the European Union. having regard to the policy aim—for example, a lawwhich It is important to recognise that the Women and caps benefits may apply to everyone but, in practice, a Equalities Select Committee of the House of Commons, large proportion of those affected may be lone mothers in a report in February 2017, concluded: and children and therefore such a law could affect “Ensuring that equality protections are maintained is not them disproportionately and be incompatible with the simply a matter of transposing existing EU law. In order to new right unless it could be justified. protect rights, the Government needs to take active steps to The proposed new clause also calls for a ministerial embed equality into domestic law and policy. The steps we recommend would entrench equality into the UK legal and policy statement of compatibility,which parallels what is required framework and would ensure that the UK retains a strong, in the Human Rights Act. It will support effective undiminished record of equality after it leaves the European parliamentary scrutiny of new laws as parliamentarians Union”. in both this House and the other place consider the The purpose of the amendment is to give substance to Government’s explicit policy justification for any that conclusion of the Women and Equalities Select potentially regressive measure. The right to challenge Committee in the other place, and I am indebted to discriminatory laws in the courts provides an essential the Equality and Human Rights Commission for mechanism to ensure that the new right is enforceable instigating this amendment. by those affected. It will not impact solely on justifiable different treatment, so ensuring that the courts can As I have indicated, equality rights are currently take account of the policy justification for the measure underpinned by EU law. The right to equal pay for in question, and will provide the flexibility necessary work of equal value, the protection of pregnant workers to deal with new and unforeseen circumstances. and many others cannot be removed from our domestic law as long as we are part of the European Union. The enforcement mechanism in the amendment is However there are concerns that at some stage in the the same as for the convention rights under the Human future a Government—not necessarily the present Rights Act, with which our courts are wholly familiar Government—may seek to erode these rights. The when considering compatibility of laws with fundamental amendment seeks to provide an overarching domestic rights. It is completely different and distinct from the guarantee of non-discrimination by the state—in other scheme under the Equality Act 2010. The provision words, a homegrown replacement for the safety net for will operate alongside existing rights in the Equality equality rights which are currently provided under EU Act 2010 but will not replace them. Where the Equality law. Act 2010 provides an exception to the prohibition of Of course, a sovereign United Kingdom Parliament discrimination because Parliament has determined that could at any stage repeal this provision but if it is in specific conduct should not be unlawful, this would statute it would be much more difficult to take it away also be expected to be treated by the courts as justifiable after it has been clearly set out. The Government’s under the new right for the same reasons. difficulties in trying to remove the Human Rights Act This is an important proposal. It is intended to show that when legislation is in statute it achieves a apply across the United Kingdom but obviously certain safeguard which Governments have to think its application in Scotland, Wales and Northern twice—if not three or four times—about before trying Ireland would require discussion with the devolved to dismantle. Administrations. The amendment seeks to ensure that 1161 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1162
[LORD WALLACE OF TANKERNESS] complexities. We have heard today about the problems the equality rights which have been developed as part created by legal complexities. The proposed new clause of our membership of the European Union—of which provides a straightforward domestic solution to a clear we are justifiably proud—will be proofed into the right to non-discrimination by the state to replace the future as we leave the European Union. I commend loss of protection provided to children as we leave the amendment to the House. I beg to move. the EU. Women are another group for whom this amendment Lord Adonis (Lab): My Lords, I have four amendments is especially important, not least because of the in this group. They raise exactly the same issues as responsibility they still tend to have for the everyday those raised by the noble and learned Lord and I have care of children and older people. Organisations nothing to add. representing women such as Fawcett and the Women’s Budget Group, of which I am a member, are concerned Baroness Lister of Burtersett (Lab): My Lords, I about the potential impact on women of our withdrawal support Amendment 70A, to which I have added my from the EU and fear the possible regression of women’s name. It has a forward-looking approach which addresses and related rights despite welcome assurances from the need to set our homegrown equality standards Ministers. Like the noble and learned Lord, I too against which new laws will be measured by our courts welcome the strong statement made by the noble after we have left the EU. I am grateful to the EHRC Lord, Lord Duncan of Springbank, on Monday in for promoting this amendment and for its assistance our debates then. He gave strong assurances, particularly with it. on the working time directive. Nevertheless, the research Returning to our earlier debate about children’s to which I referred on Monday and the experience of rights, among other things, as the noble and learned my noble friend Lady Crawley, which she recounted Lord said, the proposed new clause provides protection in the same debate, suggest that the history of the for children against unjustified discrimination. This UK Government’s engagement with the EU on the contrasts with the provision under the Equality Act 2010, development of equality law is not as rosy as Ministers under which children are not protected from age repeatedly suggest. I am afraid that concerns remain discrimination in the provision of services and public about what might happen if and when we leave. In functions. It requires a Minister to make a statement response to such concerns, as noble Lords have already of compatibility when introducing new legislation, heard, the Women and Equalities Committee stressed—to which will include that it does not unjustifiably discriminate take a slightly different quote from its report—that: against children. It also provides a mechanism for “It is therefore important for the Government, during the children to challenge laws and actions by the state which process of leaving the EU, to ensure that robust equality protection have a discriminatory impact on them. is embedded at each milestone”. This amendment is a means of doing just that at this As I argued on Monday, it is important, as the UK very important milestone. Given all the Government’s leaves the EU, that children do not lose the important assurances about their commitment to equality, I cannot protections they currently enjoy under the Charter of think of a single reason why they should not want to Fundamental Rights. The proposed new clause would accept this amendment. replace the EU safety net for children’s rights with the UK’s own guarantee of fair and equal treatment for At the start of Second Reading, the right reverend children. In doing so, it sets domestic equality standards Prelate the Bishop of Leeds asked us: at the end of this against which new laws will be measured and makes process, what sort of Britain do we want to inhabit? our domestic courts the arbiter of equality compliance. Many noble Lords subsequently referred back to that It is a necessary addition to our equality laws to protect vital question. I believe that equality and human rights rights as we leave the EU. are fundamental values, which must stand at the heart The need for adequate legal protection for children of that Britain. Acceptance of this amendment would against the discriminatory impact of laws is demonstrated send a strong signal about the kind of country we want by the way different cases have fared in the courts Britain to be. recently. In one case, currently the subject of appeal by the Government, the High Court held that regulations 6.30 pm implementing the social security benefit cap, to which Lord Low of Dalston (CB): My Lords, I too rise to the noble and learned Lord referred, are discriminatory speak in support of Amendment 70A, which has just and unlawful in their impact on lone parents with been moved by the noble and learned Lord, Lord children under the age of two. In his judgment, Mr Justice Wallace of Tankerness, and spoken to by the noble Collins referred to the difficulty, and often impossibility, Baroness, Lady Lister. of lone parents with children under two being able to do paid work and concluded: I apologise that I did not speak at Second Reading. “Most lone parents with children under two are not the sort of My apology is in the same terms as that of the noble households the cap was intended to cover…Real misery is being Lord, Lord Paddick, on the second day in Committee, caused to no good purpose”. who explained that he had taken the view that he was In this case the claimants were able to rely on convention unlikely to be able to add anything new, bearing in rights, yet an earlier case on the same issue but from mind the large number of speakers. a slightly different perspective had failed in part As we have heard from the last two speakers, the because of the difficulties in doing so. The point of the Government have strongly proclaimed their intention example is to ask why discrimination that affects the of maintaining existing equality protections once we welfare of children should be subject to such legal leave the European Union. The proposed new clause 1163 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1164 contained in Amendment 70A provides the means of falls within article 1 of the first protocol to the convention, ensuring that this intention is fulfilled. It is thus in which protects property rights. Therefore, the right very much the same case as Amendment 66, which, as not to suffer discrimination in the enjoyment of a the noble Lord, Lord Deben, pointed out, does nothing convention right under article 14 of the convention more than what the Government want to ensure. It was engaged. However, obtaining a remedy for such addresses concerns raised by the Women and Equalities discrimination should not depend on whether the Committee in another place, as we have heard—concerns discrimination can be tied to a convention right. That that our exit from the European Union risks losing the is why a free-standing right to equality in UK law is entrenchment of our rights, provided by their under- needed, which is what the proposed new clause is pinning in EU law. To achieve this, the UK needs to intended to achieve. replace the EU’s equality safety net with our own right to equality. Lord Cashman (Lab): My Lords, I rise briefly to speak in favour of these amendments. I preface my We in Britain are rightly proud that we have the remarks by saying that I agree absolutely with my strongest equality law in the world, which, in many noble friend Lady Lister of Burtersett. Human rights, areas, goes beyond what EU law requires. Yet some fundamental freedoms and civil liberties define a country important protections—for example, for disabled people, and its approach to civilisation. I remember 30 years who are naturally very close to my heart—as a result ago looking on in horror as discrimination was visited of the impact of EU law go beyond what we have been on lesbians, gay men and bisexuals in this country by ready to do domestically. For example, the Coleman the then Conservative Government in Section 28 of case in the European Court of Justice established that the Local Government Act. That should remind us that it is unlawful to discriminate against individuals because there is never a continuous progressive line on equalities they care for a disabled person. When the underpinning and human rights, and that we need to reinforce the of the EU law is taken away, there is a real risk that a protections that we have. future Government could seek to chip away at such protections. We have already seen this in the Red Tape It is essential to guard against the excessive transfer Challenge under the coalition Government, when the of power from Parliament to the Executive and to existence of the EU safety net protected much of the ensure that any changes to fundamental rights and Equality Act 2010, but we still saw provisions outside freedoms are subject to full parliamentary scrutiny. the EU directives being undermined. Many important I believe that is a matter of constitutional principle, protections in the Equality Acts could not have been as I have said on many occasions in your Lordships’ changed at that time because they were part of EU House and it bears repetition. law, as well as our own law. After Brexit, this will no New scrutiny procedures introduced in the other longer be the case. Areas that some commentators place do not address this concern. They provide a have suggested may be at risk post Brexit even include mechanism, in the form of a sifting committee, to aspects of equal pay legislation. This clause will set the recommend—I emphasise “to recommend”—that the equality standard against which new laws will be measured affirmative scrutiny procedure be used. I look forward and make our courts the arbiter of equality compliance. to the Minister’sconfirmation that such a recommendation does not have to be accepted by the Minister.Furthermore, Wehave already heard what the Women and Equalities stronger safeguards are required in the Bill to exclude Committee stressed: ensuring that equality protections changes to equality and human rights from the scope are maintained is not simply a matter of transposing of these delegated powers. existing EU law. To protect rights, the Government I turn to Amendment 70A, having dealt with the need to take active steps to embed equality into domestic principles of Amendments 161, 259 and the others in law and policy. The proposed new clause specifically this group. I congratulate the noble and learned Lord, protects against disability discrimination and requires Lord Wallace of Tankerness, on the way he introduced that a Minister must make a statement of compatibility it, and the noble Lord, Lord Low, and my noble friend when introducing new legislation. Specifically, this Lady Lister. Amendment 70A would introduce a new must include an undertaking that it does not discriminate clause to ensure that the rights to equality presently on grounds of disability. This establishes an important enjoyed in accordance with EU law are enshrined in mechanism for holding the Government to account in domestic law after the UK leaves the EU. Therefore, relation to new measures with a potential impact on there is arguably no reason why the amendment should disabled people. The clause also provides a mechanism not be accepted. Indeed, for the Government to deliver for disabled people to challenge laws and actions taken on their commitment to non-regression on these rights, by the state that have a discriminatory impact. the UK needs to replace the EU’s equality safety net, Sadly, it is all too true that the rights of disabled referred to by the noble and learned Lord, with our people need further protection in this way.For example, own domestic right to equality.Amendment 70A would the High Court found, as recently as December of last achieve this by setting a standard that all individuals year,that regulations determining entitlement to personal are equal before the law and have a right not to be independence payment unlawfully discriminated against discriminated against by a public authority. For these disabled people. The court held that the regulations reasons and many others, particularly the lessons of were “blatantly discriminatory” against those with history, I support the amendment and others in the mental health impairments and that they were manifestly group. without reasonable foundation. In that case, the claimant was able to rely on her rights under the European Baroness Whitaker (Lab): My Lords, I add my Convention on Human Rights because she was able to support to this group of amendments for all the show that the personal independence payment scheme reasons so eloquently set out by noble Lords. It would 1165 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1166
[BARONESS WHITAKER] remember correctly, the noble and learned Lord asked indeed be a retrograde step if the Government did not what the relationship to this amendment would be if takeadvantage of these amendments to provide safeguards the Government were to introduce their own right to for our citizens. equality. If that is the question, the answer is quite straightforward. If the Government were to bring in Lord Judd: My Lords, I hope we are not going to their own freestanding right to equality, they would end up with a minimalist position whereby if there is essentially have accepted the amendment and there anything in which we are found to be lagging behind would be no need for it because they would have Europe, it has to be incorporated in the arrangements introduced it into primary legislation of their own being made for the future. I agree totally with those motion. who said that the kind of Britain I want to leave to my children and grandchildren is one that is a beacon for Lord Mackay of Clashfern: My Lords, I am sorry the principles of human rights and equality, in which but that is not exactly the question, which was on the we are seen to be leaders in the world. From that effect of the retained EU law brought into this country, standpoint, I hope we will take this opportunity to assuming it is given the status of primary legislation. make sure that we are making the necessary arrangements That is a different question from the one the noble to ensure this. Lord, Lord Low, has kindly answered. But it is quite an important question, because there is a danger at Baroness Crawley: My Lords, I also support these least of a degree of conflict between the two. It is just a amendments.The further embedding of equality principles question that I do not know the answer to. in our legislation is an argument we would all accept. Lord Wallace of Tankerness: I apologise. I will wait Lord Mackay of Clashfern: My Lords, I ask the before I respond. noble and learned Lord, Lord Wallace of Tankerness: assuming the amendment proposed on the status of The Minister of State, Department for Exiting the EU law brought into this country’s law is passed—in European Union (Lord Callanan) (Con): The noble and other words,if it became primary legislation—what would learned Lord, Lord Wallace, will have the opportunity be the relationship between that and the amendment? to respond to the question posed by my noble and learned friend Lord Mackay after I have set out the Baroness Hayter of Kentish Town (Lab): My Lords, Government’s position. we have heard repeatedly and correctly in the Chamber, I thank noble Lords for this brief debate on this given the Government’s assurance that all the rights extremely important subject. Amendment 70A, tabled enjoyed by British citizens on 29 March next year will by the noble and learned Lord, Lord Wallace of still be in place on 1 April, that our task is to make Tankerness, seeks to ensure a firm basis for equalities sure that is the case.Clearly that is what these amendments protections as we leave the EU. In that sense, and in are framed to do: ensure that the rights to equality we response to the noble Baroness, Lady Hayter, I of presently enjoy in accordance with EU law are enshrined course understand and sympathise with the motivation in domestic law after exit day. That is needed because behind the amendment and recognise the noble and we have that safety net at the moment, which means learned Lord’s interest, shared by many others on all that those rights cannot be removed, but, as I think sides of the Committee. Indeed, the noble Lord, Lord the noble and learned Lord, Lord Wallace, said, we Adonis, tabled Amendments 101A, 133A, 161 and 259 will need our own homegrown safety net to ensure the —I thank him for his brevity in not addressing them— rights are protected. As we have heard, Amendment 70A which seek to restrict the powers in Clause 7 from making sets the standards that all individuals are equal before any changes to equalities and human rights legislation. the law and all individuals have a right not to be However, as I will endeavour to set out for the discriminated against by a public authority, which benefit of the Committee, we believe that these I am sure we all accept. As my noble friend Lord amendments are unnecessary given our commitment Cashman reminded us, we cannot take those for granted. to maintaining existing equality and human rights He dealt with Amendments 161 and 259, so I will not legislation and, more widely, to sustaining our strong repeat that. I repeat the words of my noble friend track record in this area. Amendment 70A would in Lady Whitaker: we must make sure that there can be fact give rise to significant new rights—which is not, no retrograde move away from where we are now. of course, the purpose of the Bill—and in all likelihood I feel fairly sure that the Minister concurs absolutely would raise difficult questions, as my noble and learned with what we are trying to achieve. I hope he can either friend Lord Mackay indicated, regarding legal certainty. accept this method or undertake to provide a similar The Government have already made clear our one so that it can be written into the Bill and does commitment that all the protections in and under the what he and others want: to preserve all the rights we Equality Acts 2006 and 2010 and equivalent legislation have, so that, on April Fools’ Day next year, we are not in Northern Ireland will continue to apply once the April fools. UK has left the EU. This has been stated unequivocally on several occasions, including in the March 2017 6.45 pm White Paper that preceded the Bill, the equality analysis Lord Low of Dalston: My Lords, if the noble and we published in July 2017, and in the government learned Lord, Lord Wallace, does not want to respond response of October 2017 to the Women and Equalities to the question from the noble and learned Lord, Lord Select Committee’s report, Ensuring Strong Equalities Mackay, perhaps I might have a go. If I heard him and Legislation after the EU Exit. 1167 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1168
As further assurance, the Government tabled an equality duty have no equivalent in EU law. Also, there amendment in the other place—now paragraph 22 of is no existing EU directive that prohibits, as our Equality Schedule 7—that will secure transparency in this area Act does, discrimination by providers of goods or by requiring ministerial statements to be made about services because of age, disability, religion or belief amendments made to the Equality Acts under each and sexual orientation. We are proud of the UK’s piece of secondary legislation under key powers in the track record on equalities and we do not need to be Bill. These statements will in effect flag up any amendment part of the EU to sustain that excellent record. to the Equality Acts and secondary legislation made Subsection (2) of the new clause proposed by under those Acts, while also ensuring that Ministers Amendment 70A seeks to establish a legal provision confirm that, in developing their draft legislation, they that everyone is equal before the law. However, that have had due regard to the need to eliminate discrimination very principle is already reflected in the rule of law in and other conduct prohibited under the 2010 Act. We the UK and is one of the longest-established fundamental further confirmed in the other place that similar statements principles of the UK’s constitution. The common law will be made in relation to other Brexit Bills. So we requires public authorities to act reasonably when have clearly shown our commitment to maintaining exercising their powers, and this includes a requirement the protections in our existing equality legislation, and not to discriminate arbitrarily between different cases. ensuring that Brexit will not see the UK somehow Finally, subsection (4) of the clause proposed by regressing in this area. In contrast, Amendment 70A Amendment 70A would, albeit without directly amending would go much further by creating new freestanding the Human Rights Act 1998, have the effect of linking rights which would, indeed, apply in circumstances the new rights created by subsections (2) and (3) to the where the Charter of Fundamental Rights does not. framework of key provisions in the 1998 Act. Again, Let me take a few moments to explain this in a little with respect, I must say that I do not think that this is more detail. appropriate. We believe that it would create legal First, subsection (3) of the new clause proposed by uncertainty and confusion, not least around the existing Amendment 70A takes an element from the Charter prohibition on discrimination under Article 14 of the of Fundamental Rights, strips it of its original context ECHR, as set out in the Human Rights Act 1998. The and creates from it an exceptionally wide-ranging bottom line is that substantive new rights are not anti-discrimination duty. The effect of this is to go consistent with the intended purpose of the Bill, which well beyond the requirements of the equivalent charter is about maintaining the same level of protection on rights, which, as has been said, apply to member states the day after exit as before. It is not intended to be a only when they are acting within the scope of EU law, vehicle for substantive legislative changes such as those and well beyond the requirements of current domestic proposed and so we cannot accept Amendment 70A, law. It would, for instance, introduce a legal duty on and I hope that the noble Lord feels able to withdraw it. public bodies not to discriminate on grounds of language, It is also to this end that, while we agree with and property, birth or political opinion. That may sound understand the honourable intentions behind the reasonable on the face of it, but if we consider language amendments of the noble Lord, Lord Adonis, we for a moment, this duty could, for example, give all cannot accept them as the legislation that underpins non-English speaking users of government services a these rights and protections will contain many provisions right to claim discrimination if any of those services is that will become deficient after our exit. Indeed, the available only in English and not in their own first response that the Government put out in October language. This could ultimately mean that all public 2017 highlighted some of these deficiencies. For example, services would have to be provided in a very wide array the Equality Act refers in several places to EU or to of languages, at a substantial and disproportionate Community law. These references are likely to need to cost, which perhaps would even make some discretionary be replaced with the term, “retained EU law”. As services unviable. such, we believe that it is essential that the Clause 7 As many noble Lords will be aware, the key wording power is able to address these deficiencies so that we of subsection (3) of the new clause proposed by can ensure that the legislation that safeguards these Amendment 70A originates in Article 14 of the European rights and protections can continue to function Convention on Human Rights. Again, I want to be effectively—which is what I would have thought we all very clear on this point: nothing in the Bill affects the wanted to see. Without this ability, businesses and Government’s ongoing commitment to the ECHR, individuals may be vulnerable to the resultant gaps in which is, of course, given further effect in domestic law the law,which would be counterintuitive to the intentions by the Human Rights Act 1998. Against this backdrop of the noble Lord. of clear commitments to the European Convention Equally, it cannot be the intention of the noble and to maintaining all the protections in and under Lord to prevent the Government remedying a breach the Equality Acts, I respectfully suggest that the concern of our existing international obligations using Clause 8. expressed about the future of equality rights after we Both these clauses are subject to the same restrictions leave the EU and the assumption that new freestanding on amending the Human Rights Act and the same anti-discrimination rights are in some way needed to equalities transparency requirements. In relation to offset the impact of our exit is misplaced. Clause 9, to which Amendment 161, also in the name The Equality Act 2010 is the cornerstone of our of the noble Lord, Lord Adonis, refers, one of our equalities legislation. It covers all the requirements of clearest similarities with the EU is our shared historic the four existing EU equality directives but also goes belief in the values of peace, democracy, human rights much further. For example, our ground-breaking gender and the rule of law. It is extremely difficult therefore to pay gap reporting requirements and our public sector envisage that any withdrawal agreement we negotiate 1169 European Union (Withdrawal) Bill [LORDS] Saudi Arabia 1170
[LORD CALLANAN] in the previous debate: if he thinks that some of these with the EU, and by extension the Clause 9 power to go too far, if he and I were to meet and he were to implement parts of that agreement, will somehow excise the ones he thinks take it beyond what is already undermine human rights and equalities law. Rather there, would he then be prepared to accept an amendment perversely, Amendment 161 would actually prevent on Report without these? That might be something he Clause 9 strengthening human rights or equality law would wish to consider. on the basis of something agreed in the withdrawal I also note that while he made the point in relation agreement with that effect. to subsection (2): However, as I have already set out, Clause 9 is, like “All individuals are equal before the law”, Clause 7(1) and Clause 8, explicitly prohibited from as I did in my remarks, that that is part and parcel of being used to amend, repeal or revoke the Human our common law, he did not have anything to say Rights Act or any subordinate legislation made under about the second part, which refers to having, it. In the case of Clause 17, I reassure the Committee “the right to the equal protection and benefit of the law”. that these powers may be used only in consequence of, The noble Baroness, Lady Lister, very graphically or in connection with, the coming into force of a described the recent case which shows that treating provision of the Bill itself. We expect that any changes everyone equally before the law does not take account made to equalities or human rights legislation to deal of the fact that some laws might impact disproportionately with the provisions of the Bill will be to ensure that the on some categories of people and end up in discrimination. changes caused by the Bill are properly reflected in the statute book and that there is smooth transition in 7 pm the law.Tocontinue to work effectively and appropriately, I was glad that the noble and learned Lord, Lord the statute book must be tidy. Case law and other legal Mackay of Clashfern, repeated the question to the authorities provide a narrow scope for Governments noble Lord, Lord Low, as I was not sure that I quite to exercise consequential and transitional powers of understood it the first time. I apologise if I have not this type. As such, they cannot be used to make truly quite got this right, but I think he asked how, if substantive changes to equalities or human rights retained EU law has the status of primary legislation, legislation. the proposed new clause would relate to it. For example, I hope that what I have been able to say has satisfied if the statement of compatibility was, as it were, noble Lords that the Government remain committed assumed as primary legislation, that could not possibly to maintaining equalities and human rights protections apply. Trying to apply what is here to a piece of throughout the process of leaving the EU and I hope primary legislation, I would have thought that if at that that will enable the noble Lord to withdraw the some future date an individual thought there was an amendment. incompatibility with what was then seen as primary legislation, that case could be argued before the courts Lord Cashman: Before the Minister sits down, I asked and it would be up to them to determine whether him a direct question about the sifting committee and indeed it was incompatible, having regard to what is in whether the recommendations had to be accepted by the proposed clause. Having said that, I think that that the Minister. Perhaps he could address that question. is highly unlikely, given that the whole point of this amendment is to reflect the fact that the retained Lord Callanan: I think my noble friend the Leader European Union law has been the basis of many of will be setting out our proposals for the sifting committee these equality rights—and I cannot immediately think in this House. I have not seen the details, but my of an example where one would feel that it was lacking. understanding is that there will be recommendations But—I say tentatively, having been given a few minutes to the Minister. to think about it—if you were to apply this to someone seeking a declaration of incompatibility, that could Lord Wallace of Tankerness: My Lords, I thank all be possible. But, as I said, I think that it is unlikely noble Lords who took part in this debate and I thank because we are trying to build on what is already there the Minister for his reply. He will perhaps not be rather than diminish it. surprised to learn that I was not wholly satisfied with I have heard what the Minister said. I will obviously his reply—although in fairness there was some common want to reflect on it, but for the meantime I beg leave ground. He, like me, referred to the White Paper of to withdraw this amendment. March 2017 and the commitments that the Government made. Indeed, I accepted and acknowledged that in Amendment 70A withdrawn. many cases the rights that have been established in House resumed. Committee to begin again not before relation to equality in this country have sometimes 7.31 pm. exceeded those in the European Union. However, that somewhat misses the point, because what I sought to do with this amendment was to ensure that, as we go Saudi Arabia forward and leave the European Union, these rights Statement will still be there and that no future Government will be able to row back on them without having to give a 7.01 pm proper explanation to Parliament. The Minister of State, Foreign and Commonwealth The Minister made a couple of other points and I Office (Lord Ahmad of Wimbledon) (Con): My Lords, will reflect on what he said. I wonder about making with the leave of the House I would like to repeat the the same offer as the noble Lord, Lord Deben, made Answer given by my right honourable friend the Minister 1171 Saudi Arabia [7 MARCH 2018] Saudi Arabia 1172 for the Middle East in response to an Urgent Question The Government talk about the peace process in asked in the other place today. The Answer is as Yemen. What has happened to the United Nations follows: resolution that we drafted, with which the Saudis “I have been asked to respond on behalf of the refuse to co-operate? Will the Minister tonight pledge Foreign Secretary as he is currently at an engagement that we will, as a pen holder on Yemen, demand at the at the Palace. United Nations an immediate ceasefire, proper peace The Prime Minister has invited the Crown Prince of talks and a permanent end to this dreadful war? the Kingdom of Saudi Arabia, His Royal Highness Mohammad bin Salman, to visit the United Kingdom. Lord Ahmad of Wimbledon: My Lords, as the noble We are delighted to welcome him and his delegation Lord is aware, reforms have been initiated by His on his first official visit to the UK, taking place from Royal Highness the Crown Prince. He is right to raise today until Friday. the important issue of human rights. On the issue of Yemen, we will continue to push for a political settlement During the visit the Prime Minister and the Crown with all the influence we have, both through international Prince will launch a new and ambitious strategic forums and directly and bilaterally with the Kingdom partnership between our two countries, which will allow of Saudi Arabia. On the general issue of human us to discuss a range of bilateral matters and foreign rights, we should look at the record of the Crown policy issues of mutual interest. Prince. While there are, of course, many areas still to The UK Government have a close and wide-ranging focus on, we must look at the starting point. Some of relationship with the Kingdom of Saudi Arabia. Saudi the announcements that have been made on issues of Arabia is the UK’s third-fastest growing market for greater gender equality may, from our perspective, seem exports, and we continue to work together to address like a small step forward. But if we look at the recent regional and international issues, including Yemen. history of the Kingdom of Saudi Arabia the reforms The visit will allow for a substantive discussion we have seen on women’s rights in particular, both in between the Crown Prince and the Prime Minister on terms of driving and attending sports events, are a the need for a political resolution to the conflict in positive step forward. Yemen, and how to address the humanitarian crisis. Another area of reform on which I have been The United Kingdom fully supports the Crown encouraged is greater expression and freedom of religion Prince’s social and economic reform programme, Vision and belief. As the noble Lord may be aware, on the 2030. His visit is an opportunity for him to underline Crown Prince’s visit to the United Kingdom he stopped his vision of an outward-looking Saudi Arabia, one in Egypt. Another area we have often discussed at the that embraces a moderate and tolerant form of Islam Dispatch Box is the plight of Coptic Christians in and a more inclusive Saudi society.This includes greater Egypt, and I was heartened that during the Crown freedom for women, in line with the recent statements Prince’s visit he visited the Pope of the Coptic Church and reforms made by the Crown Prince. and actually did so in the cathedral. We believe these We believe these reforms are the best course for are positive steps forward, especially if looked at through Saudi Arabia’s future security, stability and prosperity, the lens of Saudi society. We will therefore continue to and it is right that the UK supports the Crown Prince work on a strong bilateral basis to ensure that many of in his Vision 2030 endeavours”. the issues the noble Lord and I have discussed before will continue to be raised, including the important 7.03 pm issue of human rights. Because of our relationship Lord Collins of Highbury (Lab): My Lords, I thank with the Kingdom of Saudi Arabia I believe we will be the noble Lord for repeating that response to the able to see further movement in that respect. Urgent Question. There is no doubt that we need a good diplomatic and economic relationship with Saudi Lord Wallace of Saltaire (LD): My Lords, I recognise Arabia. But as in any good relationship, we must have that our leaving the European Union makes Saudi honesty. I fear that the United Kingdom’s protests Arabia even more important as a partner than it has against serious human rights abuses in Saudi Arabia been up to now, and also more important as an export are so subtle that they are clearly not being heard. In market. However, can we have an assurance, first, that the eight months since he became Crown Prince we the closeness of our military relationship will not have seen the number of executions in Saudi Arabia either implicate us in what is happening in Yemen or double. We, like the Prince, who was rightly enraged at prevent us from making the necessary criticisms of the the Houthi rebels’missile attack on Riyadh in December, mistakes that the Saudis appear to be making there? condemned that attack. But the response from the Secondly, since many wealthy Saudis and members of Saudis was a 10-day barrage of indiscriminate air the royal family have homes and investments in Britain, strikes on civilian areas, killing and injuring hundreds, can we have an assurance that in the fight against including dozens of children. corruption we will assist with transparency and that, In July last year, the most reverend Primate the when it comes to the likely applications for asylum in Archbishop of Canterbury said, Britain from some of those who have fallen out, they “the depth of our relationship with Saudi Arabia in trade and are taken one by one and fairly? I appreciate that that finance … would indicate that we have the options for significantly is a very delicate area. Lastly, will the Minister tell us more leverage than mere condemnation”.—[Official Report, 18/7/17; how we will help with the process of social reform? We col. 1523.] have all learned that revolution is much worse than Like the most reverend Primate I wonder what other evolution. If the Saudis are just starting on a very long measures the Government are taking which involve and painful process of evolution, how are we going to action as well as condemnation. assist in that? 1173 Saudi Arabia [LORDS] Leveson Part 2: Sunday Times 1174
Lord Ahmad of Wimbledon: I thank the noble Lord. Can my noble friend the Minister say how the UK will He will know from his own experience at the Foreign help support that reform to go at a much faster pace Office that the relationship is important, as he has than it currently is? rightly articulated. We will continue, on a bilateral basis, to implore reform upon the Kingdom of Saudi Lord Ahmad of Wimbledon: I think we have seen Arabia, primarily through the drive we have seen from the reforms. My noble friend is quite right to raise His Royal Highness with some of the reforms he has that. I have already alluded to the fact that we have brought forward such as those on business relations. seen a beginning—and it is a beginning—of addressing He raised the important issue of defence. I can give some of the issues of gender equality, such as women him the reassurance that our defence relationship and driving or women attending sporting events. Tomorrow any contracts in that respect are subject to the strictest is International Women’s Day and I understand that criteria in making those assessments, and those continue the Kingdom of Saudi Arabia will officially mark it to be looked at on a case-by-case basis. He is right to for the first time. There is a long road still ahead but say that the process of reform within the Kingdom of cinemas are also opening in Saudi Arabia—I believe Saudi Arabia is very slow and challenging, but through Vue is opening 30 cinemas. These are small steps but Saudi Vision 2030, which sets out a broad agenda for we should continue to give encouragement across the piece. social reform and greater equality for women, we will continue to support the efforts of the Kingdom of Saudi Arabia and His Royal Highness in this respect. Leveson Part 2: Sunday Times Statement Lord Hannay of Chiswick (CB): Perhaps the Minister could reply to two questions on Yemen. First, what is 7.14 pm the duration of the lifting of the blockade on humanitarian supplies by Saudi Arabia—which was very welcome The Advocate-General for Scotland (Lord Keen of when it came—and do we believe that the humanitarian Elie) (Con): My Lords, with the leave of the House, I supplies are really getting through now and that the shall now repeat in the form of a Statement the blockade is not inhibiting them in any way? Secondly, Answer given by my right honourable friend the Secretary does he not see the force of the request made by the of State for Digital, Culture, Media and Sport to an noble Lord, Lord Collins, that we reactivate things in Urgent Question in the other place. The Statement is the Security Council? The peace process in Yemen is as follows: pretty moribund and it needs a new breath of life. If “This morning we saw reports in the media of a we really are leading the drafting on this in the Security potential fraud and data protection breach by a former Council, surely we should start some work on it now, private investigator. The allegations are of behaviour not sit there with the pen paralysed in our hands. that appears totally unacceptable and potentially criminal. Investigation is therefore a matter for the police and Lord Ahmad of Wimbledon: Taking the noble Lord’s the House will understand that there is only so far I second question first, it is not about being paralysed can go in discussing the specific details and allegations. with a pen in the hand, but as the pen holder of course More broadly, some people have already formed the we take our responsibility seriously.It is also important, conclusion that this revelation should require us to as we see the reform agenda in the Kingdom of Saudi change policy on press regulation. Policy, of course, Arabia, to use our bilateral relationship to get the should always be based on all available information. political solution in Yemen that we all desire. In answer It is worth noting that the activity described apparently to his first question, a positive stance has been taken stopped around 2010, before the establishment of the by the Kingdom of Saudi Arabia. Indeed, as the noble Leveson inquiry. Indeed, it was precisely because of Lord will know, in Yemen both the ports of Hudaydah cases such as this that the Leveson inquiry was set up. and Saleef have been opened. Since 20 December 2017, This sort of behaviour was covered by the terms of when the blockade was lifted, there have been 53 visits reference of that inquiry, and Mr Ford’s activities were by different vessels, of which 32 have delivered food raised as part of the inquiry. and 23 have delivered fuel. But I also acknowledge that when you look at the challenges in Yemen—I was As we discussed in the House last week, and then looking at the background to this—21 million people again on Monday, there have been three detailed police in Yemen need aid. That is 76% of the population. This investigations. A wide range of offences were examined is very much just the beginning and we will continue to and more than 40 people were convicted, and many work with the Kingdom of Saudi Arabia to ensure went to prison. Today’s revelations, if proven, are that the traction we have seen—the visits that have clearly already covered by the law, and appear to be in been made by different vessels—continues to focus on contravention of Section 55 of the Data Protection bringing relief and aid to those 21 million people. Act 1998. As described, they would also appear to be in contravention of the new Data Protection Bill currently Baroness Manzoor (Con): I welcome the visit of the before this House. delegation from Saudi Arabia and I hope it is successful, What is more, the fact that this activity stopped in for both the UK and Saudi Arabia. I also welcome the 2010 underlines the point that the world has changed. reforms that are taking place in Saudi Arabia. We Practices such as these have been investigated, and must not forget that Saudi Arabia is a new country newspapers today are in a very different position from and is only 50 years or so into its development. Therefore, when these alleged offences took place. This view is in the changes that have been made are quite significant. fact strengthened by today’s example because the Social reform—the 2030 vision—is really important. behaviour we have discovered today took place before 1175 Leveson Part 2: Sunday Times[7 MARCH 2018] Leveson Part 2: Sunday Times 1176 the Leveson inquiry, and existing law is in place to deal but it will not work unless there is public confidence, with it. Criminal behaviour should be dealt with by particularly when so much has been revealed about the police and the courts, and anyone who has committed wrongdoing, including the events occurring after the a criminal offence should face the full force of the law. publication of the first Leveson report. The future of a vibrant, free and independent press When he announced last week that he was dropping matters to us all. We are committed to protecting it. the Leveson inquiry, the Culture Secretary said that he We want to see the highest of standards. We must face was doing do so because he felt the public interest lay the challenges of today to ensure that Britain has in looking forward. I still believe that there is more high-quality journalism and a high-quality discourse that unites us on this than divides us. We all want a to underpin our democracy for the years to come”. review of the future of quality journalism and for there to be an assessment of what is required to sustain that for the benefit of our democracy and 7.17 pm polity. Where we differ is that we think that the public Lord Stevenson of Balmacara (Lab): My Lords, the interest demands that the new inquiry should start shocking revelations some of the press and other with an examination of the recent history, culture media earlier today about allegations of blagging and practice of the press, police and politicians. The commissioned by the Sunday Times are, in the words Government clearly want to draw a veil over that. of the Secretary of State, They should be very careful, particularly when they “totally unacceptable and potentially criminal”, think they are acting in the public interest. and the right thing is for them to be investigated by the police. However, the key issue is that the Secretary of Lord Keen of Elie: My Lords, the Government have State has refused to reconsider the decision to close to take decisions about what is proportionate, appropriate the Leveson inquiry. Let us be clear: this decision was and in the public interest. Our analysis is that the not supported by the vast majority of those who terms of reference for part 2 have already largely been responded to the public consultation and it was strongly met and that the cost and time of part 2 would be opposed by the chair of the inquiry, Sir Brian Leveson, disproportionate and not in the public interest. whose letter is available in the Library. I say again to the Government that letting down the Lord McNally (LD): My Lords, one of the things victims of this type of press activity is breaking all the we did not have last Thursday when the noble and promises they were given, and is a disgrace. In light of learned Lord made his Statement was Sir Brian Leveson’s this, I wonder whether Minister can explain why it is letter. In both Houses, an impression was given that not in the public interest to complete the Leveson Sir Brian basically accepted what was going along. inquiry, given that, far from being an isolated event Through Hansard I urge every Member of this House from a previous age, today’s revelations confirm that to go to the House of Lords Library and look at the phone hacking and other criminal behaviour was more letter, which is a devastating six-page indictment of widespread and affected a wider range of individuals what this Government have done. He makes it very than was disclosed in the written evidence given to clear that he wanted to go on with it. He does not part 1 of the inquiry, and that some of the oral accept that IPSO is up and running so wonderfully. He evidence given to the inquiry was, at the very least, points out examples, such as the Manchester terrorist incomplete, so that, in Sir Brian’s words, it, outrage reported by the noble Lord, Lord Kerslake, “remains unclear exactly how widespread these and similar practices where there was intrusive press behaviour, and in the have been throughout the print media”. letter he quotes recent worrying police and media It may be that this sort of behaviour has ceased but it collusion. He also challenges the Government about is in the public interest to be certain about that. cost. It is a devastating indictment. Does the Minister Neither Leveson part 1 nor the civil or criminal trials think that the way the Government have handled this have provided definitive answers about who did what is in any way in the spirit of the Inquiries Act 2005, to whom. Sir Brian suggests that the public interest which requires consultation with the chairman as a would be served only by, safeguard so that no Government will cut and run “a detailed, reasoned report which covers the whole of the from an inquiry? That is exactly what this Government available evidence”. have done. Will he again consider a more constructive While there is much about the new press regulator— response to what was said by the Official Opposition? IPSO—that can be welcomed, the Secretary of State We were getting this right when we were working indicated in the other place today that more needs to together. It has gone badly wrong since the Government be done in terms of IPSO’s as yet untested low-cost have started cutting their own deals with the press arbitration system, and in relation to the way apologies barons. and retractions are dealt with. It is surely in the public interest to get this right so that victims of press intrusion Lord Keen of Elie: My Lords, of course since the can actually get the redress they so patently have not 2005 Act we have to consult the chairman of an had in the past. Although included in the original inquiry, and that is exactly what we did. Thereafter we terms of reference, there has been no proper investigation had to make a judgment about the way forward. of failures of corporate governance and management Newspapers today are in a very different position from at News International and other newspapers. when the phone-hacking scandal occurred back in On how to go forward, we currently have two press 2011. The events just reported relate to a period between regulation models, and that is clearly unsustainable. 1995 and 2010. We have seen significant reforms to Voluntary self-regulation may well be the right approach, press regulation, and we have discussed that before in 1177 Leveson Part 2: Sunday Times[LORDS] European Union (Withdrawal) Bill 1178
[LORD KEEN OF ELIE] it is in that context that the Statement was made. As to this House. It is our considered opinion and judgment the scope of the inquiry at the time, there are aspects that it is not appropriate or proportionate to proceed of part 1 that touched upon this, but the terms of with part 2 of the inquiry. reference of the inquiry have also been partly met through the police investigations which took place. Lord Prescott (Lab): My Lords, as an active victim of telephone hacking, I was shocked to hear a private 7.27 pm investigator working for the Sunday Times announce that he was sent on fishing expeditions to look at what Sitting suspended. information there was about me and the whole Labour Cabinet and that in his investigations he conducted illegal acts. That is shocking and totally unacceptable European Union (Withdrawal) Bill and it is why Lord Justice Leveson has made it clear Committee (5th Day) (Continued) that he wants to see the inquiry continue. Since the Government continue to take the view that they will 7.32 pm not proceed with part 2 or implement Section 40, can the Minister confirm that the House will have legislation Clause 7: Dealing with deficiencies arising from before it to make the changes which the Government withdrawal have talked about? That would presumably mean that we would be allowed to have a vote on the very issue of whether we agree with the Government’s conclusion Amendment 71 against the unanimous view of both Houses on having Moved by Lord Wilson of Dinton such an inquiry. If that is to be the case on such legislation, would it be useful to have Lord Justice 71: Clause 7, page 5, line 3, leave out “the Minister considers Leveson look at this incident of blagging with the appropriate” and insert “is necessary” Sunday Times and Mr John Ford so that we could be informed when we have the debate in this House on Lord Wilson of Dinton (CB): My Lords, in moving whether we agree with the Government’s objective to Amendment 71, I will also speak to Amendments 116, close down a second inquiry or Section 40? 253 and 257, which are in my name and the names of my noble friend Lord Lisvane and the noble Lord, Lord Keen of Elie: My Lords, the conduct of John Lord Tyler, and the noble and learned Lord, Lord Ford is indicative of criminal conduct. That will be a Goldsmith. My noble friend Lord Lisvane has asked matter for investigation by the police and, in due me to convey his apologies for not being here to move course, upon their report, in appropriate terms, the amendment himself, but he has to be absent to consideration of prosecution, with the law in place speak at a memorial service in Cardiff for an old being sufficient to address it in that way. I am sure friend. I am sure the Committee will understand that the noble Lord will agree that in cases where we see reason. reports of such conduct, it is not for us to prejudge I feel we are now coming to the heart of the Bill. them but to approach them in a calm, considered I confess that, while listening to the debates, I have and coherent way. As regards the proposal to repeal found myself thinking of the Bill as creating a Section 40, as indicated before, it is the Government’s Frankenstein’s monster. It is sewing together 40 years intention to bring forward legislation on that point at of EU law, snipped around to fit with this country’s an appropriate time. law. Clause 7 gives a Minister of the Crown the power to snip away at EU law and British law to try to get them to fit together. It is a task on a huge scale, and I Lord Inglewood (Con): My Lords, I wonder whether do not believe anyone, wherever they are working, can my noble friend may be able to clarify something quite get their mind round it at the moment or round which has slightly puzzled me about the Statement. what the consequences will be. The second paragraph states: “this sort of behaviour was covered by the terms of reference of These amendments would tighten, in two ways, the that inquiry”— threshold which the Minister of the Crown has to that is the Leveson inquiry— reach in order to be able to exercise the powers. They would tighten it by providing, first, that the powers “and Mr Ford’s activities were raised as part of the inquiry”. could be used only where it was “necessary” to use Then the penultimate paragraph states: them,notwhereitwasconsidered“appropriate”.Secondly, “This view is in fact strengthened by today’s example because they would give an objective test for whether the use of the behaviour we have discovered today took place before the the powers was necessary, rather than the subjective Leveson inquiry, and existing law is in place to deal with it”. test of whether the Minister considered it appropriate. It seems to me that if the behaviour has been discovered I believe that such changes are needed and would be today, it cannot have been in front of the Leveson justified by three things. First, there is the sheer scale inquiry. I would like clarification of exactly what is of the task being undertaken. Of course, there are meant here. limits to the power—it can only be used to correct deficiencies in EU retained law which arise from Lord Keen of Elie: My Lords, my understanding is withdrawal from the European Union and do so in that some of the allegations attributed to Mr John Ford areas which are not excluded by Clause 7(7)—which were known of at the time of the Leveson inquiry and are important. But there are still huge swathes of law 1179 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1180 which could be amended under the powers. From make law and amend law, subject to the restrictions. listening to a sample of the debates that the Committee That is another seven people—a Permanent Secretary has had over the last days, those include human rights, and a number of directors-general—being given this the environment, the welfare of animals—there is very power which tyrants dream of. little in the legislation we are dealing with that does In addition, I draw the Committee’s attention to not affect most aspects of people’s lives in this country. where the Explanatory Notes say that the power could The power itself is very broad: to make law which include, has the status of an Act of Parliament. An extraordinary “sub-delegating the power to a public authority where they are subsection, Clause 7(5), says: best placed to deal with the deficiencies”. “Regulations under subsection (1) may make any provision So we are talking about giving public authorities the that could be made by an Act of Parliament”. power to make law without going through parliamentary We are talking about the power to make Acts of processes and to amend law. What is a public authority? Parliament without going through the processes of According to Section 14, “public authority” is defined Parliament, which I find breath-taking. by Section 6 of the Human Rights Act 1998. If you read that Section 6, which I will give in its entirety, it says in subsection (3) that, Viscount Hailsham (Con): And in an unamendable “‘public authority’ includes … a court or tribunal”. sense, because it is to be done by resolution—there can I ask the Minister: are we seriously proposing to give be no amendment to those resolutions. the power to make law to a court? This is constitutional territory which is completely novel. Paragraph (b) in Lord Wilson of Dinton: The noble Viscount reinforces that subsection says that “public authority” includes, the point which I am trying to make. The Explanatory “any person certain of whose functions are functions of a public Notes explain that the power also extends to, nature”. “altering Acts of Parliament where appropriate”. The proposal before this Committee is that the power to make and amend law within the conditions set out We are talking about the power to make law and to in the clause could be capable of being given to any amend existing law. This is the dream of tyrants person certain of whose functions are of a public through the ages. It is something which is repugnant to nature, which in essence is any public servant. I put it the history of this country and the development of to the Committee: is this necessary or reasonable? our legal system. My argument to the Committee is that the House should lean as hard against it as it can, Lord Cormack (Con): Without reference to Parliament. provided that does not get in the way of achieving the desired result of a functioning legal system. We should Lord Wilson of Dinton: Is this reasonable without not leave leeway which allows Ministers to do things reference to Parliament, or to the lightest sifting procedure which would be policy changes. I am uneasy about the where any recommendations can be made? danger that policy changes could come through the use of the power. I ask the Minister whether he has an estimate of how many people may be given the power to amend When you try to marry 40 years of legislation with law and make law. I would be interested just to know British law, there will be endless choices to be made: the number. If you have so many people, possibly you could go this way; you could go that way. Policy is hundreds, given the power, you should restrict it as tied up in the interstices of quite small decisions about much as you possibly can, so far as is consistent with how the laws should be married together. We should the objects of the Bill. lean against anything which encourages policy change Why do I think that the phrase “the Minister considers and we should focus the Minister’s power exclusively appropriate” is inadequate? First of all, “appropriate” on achieving a functioning legal system, without going is a word which should be avoided as much as it wider. If the law as it emerges needs to be improved, it possibly can. In my last jobs in the Civil Service, I was should be improved by separate legislation that goes sometimes faced with proposals that the Minister through proper processes. We should give only the should be able to do something “when appropriate”. power that is strictly necessary from the point of view I always reached for my red pen and struck it out. of the objects of this legislation. Another point I draw to the Committee’s attention Viscount Hailsham: I would always include it. is the number of people who will be able to make and amend law. I am not a lawyer—I was 50 years ago, but Lord Wilson of Dinton: I think we are making the I am not now—but if I read the Bill correctly, it gives same point, which is that it either conceals inadequate the power to a Minister of the Crown, as defined in thought, or it is devious. the Ministers of the Crown Act 1975. Section 8 of the Of course, the truth is that, if you are in government, Act says that a Minister of the Crown is anyone who you want to surround the Minister and yourself with holds, plump cushions of legal protection. The legal phrase “office in Her Majesty’s Government”. is “ex abundanti cautela”. It is about excessive caution— I have not checked this, but my memory is—it used to you do not want to take risks. I have to say to the be imprinted on me when I was working in the Civil Committee that, in this case, I think the scale of the Service—that you can have up to 109 Ministers in the powers proposed is so extensive that we should lean Government, so 109 people are being authorised to against giving Ministers plump cushions of legal make or to amend law. In addition, the Commissioners protection; it should be the strict discipline of an of Customs and Excise will be given the power to objective test of what is necessary. 1181 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1182
[LORD WILSON OF DINTON] The Deputy Chairman of Committees (Lord Haskel) It is interesting that the Government themselves, in (Lab): My Lords, if this Amendment is agreed, I cannot their White Paper last March, used the language of call Amendments 72 or 73 because of pre-emption. necessity. The White Paper twice said that the powers would only be usable “where necessary”. In the cases Lord Sharkey (LD): My noble friend Lord Tyler which it provided where the powers might be used, it has added his name to Amendments 71, 116, 253 and used the word “need”: it used the language of necessity; 257. Unfortunately, he is unwell and unable to be it did not use this language of appropriateness. I think in his place today. He has, however, advised me it is only recently, with the sudden alarm that the scale —extensively—to rely heavily in my remarks on the is going to be so great, that the desire for plump report of the DPRRC published on 1 February. As I cushions has arisen. I think that the Government are am sure that Members will know, the report was backing away from an undertaking only to have the highly critical of this Bill. It noted that: power usable where it is necessary, which they gave in “The Bill confers on Ministers wider Henry VIII powers than March last year and which they should have stuck to. we have ever seen”, and went on to discuss some of these powers in detail. There are all sorts of arguments which may be The first it examined was the use in the Bill of used, such as that the word “appropriate” is used in “appropriate” instead of “necessary” as a test for other legislation. I think that is true, but I do not think action by secondary legislation. The committee pointed that it is justified in this case, where the scale is so out that this gives the Minister much wider discretion extensive. It could be argued that, when faced with a than the Government’s White Paper commitment not choice, there are different solutions and, therefore, to make major changes to policy beyond those necessary there is no solution which is necessary. That is a flimsy to ensure continued proper functioning of the law after argument—that horse will not run. What we are saying we leave the EU. Instead of a test based on objective in this amendment is that the power should be used necessity, the Government have substituted the much where its use is necessary, not where the solution is wider and entirely subjective test of the Minister’s necessary. judgment about what he or she considers appropriate. The Government must explain why they have abandoned 7.45 pm the White Paper commitment. It would help us to There is also the argument that the Ministers will understand their reasoning if the Government could give assurances on the record that they will not misuse also provide the House with concrete and substantive the power, and that it will be used only as necessary. examples of where a test of necessity may fail to produce What matters is what is on the face of the Bill when it continued proper functioning of the law. reaches the law.Once you have got your Act of Parliament I am sure that when he does this, the Minister will through with this language in, and you have got Royal want to acknowledge and deal with paragraphs 8 to 10 Assent, everything changes. You are then in a powerful of the DPRRC report, which concluded, via a worked position. You cannot have it taken away from you. example, that a proper test of necessity does not You can be challenged, but if you have got a power in prevent his choosing between possible solutions when with terms you wanted, you feel much safer in using it. the “necessary” threshold is in fact met. I am sure that I think people using this power to make law should he will tell the House why he disagrees with the DPRRC’s not feel particularly safe; they should use it only where recommendation in paragraph 12, which simply says: it is necessary. “The subjective ‘appropriateness’ test in clause 7 should be There are differences of views in the amendments circumscribed in favour of a test based on objective necessity”. about the approach that could be adopted. Some As the DPRRC remarked, the Bill is packed with noble Lords are proposing amendments which substitute Henry VIII clauses, and it might be worth remembering “appropriate”for “necessary”and which have an objective what actually happened when the Minister’spredecessors, test that it really is necessary; some say it should be Thomas Cromwell and Lord Audley, presented the where the Minister considers it necessary.The Constitution original Henry VIII power, the Bill of Proclamations, Committee had a proposal, which I respectfully submit to Parliament. Historians have disagreed about Cromwell’s is too weak, which was that the Government should motives but not about what the Bill sought to do—to simply explain the reasons for the use of the power make the King’s proclamations enforceable as law by and show that they have reasonable cause for using it. the courts. Both Houses of Parliament saw the evident I am not sure how that would work. I would put it to dangers in this and both resisted. The eventual outcome, the Committee that the simple, clear requirement should the Act of Proclamations, was a heavily revised version be that exercise of the power should be where it is of the original Bill. It showed Parliament’s strength of necessary. I think that is clear and objective and would feeling on the issue and its skill in avoiding direct meet the purpose of the Bill. I would strongly urge it confrontation with the King. In those days, the penalty to the Committee. for defying the Executive was a little sharper-edged I would like to say one further thing. This is not than a visit from the noble Lord, Lord Strathclyde. In about whether we withdraw from Europe, or whether the end, Parliament passed the Bill but amended it to we remain in it; this is about how far Parliament ensure that the provisions for enforcement would be should cede sovereignty to the Executive. I think it is wholly unworkable—and so it proved. terribly important that Parliament should think about I am not suggesting exactly the same approach, but this carefully and give away only what is strictly necessary I do suggest that we take the same view as our predecessors for the purpose of the Act. It should not give away about giving wide, direct law-making powers to the areas of comfort, areas of uncertainty, areas of slippery Executive.Weshould do what Parliament did in 1539—we language. On that basis, I beg to move. should resist. 1183 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1184
Lord Lang of Monkton (Con): My Lords, I welcome Our recommendations were largely ignored in the the opportunity to speak to this group of amendments first report, such that when the Bill appeared last and support those spoken to by the noble Lord, Lord autumn the Constitution Committee, then under the Wilson of Dinton. I congratulate him on how he capable hands of the noble Baroness, Lady Taylor of exposed the ramifications that reach so far into our Bolton, felt obliged to point out that, constitution. It saves me the task of trying to tackle it. “the Bill weaves a tapestry of delegated powers that are breath-taking It is a shame that the House is not more fully attended in terms of both their scope and potency”. tonight. That is nothing to do with my personal egotism— Since then, there has been some progress, but not very quite the reverse—but this is such an important subject; much and not nearly enough. I am very glad that we have reached it in the Bill, and it The amendments in this group are not just a matter deserves the closest of attention. I speak in support of of trivial semantics; they are the granular embodiment Amendments 71 and 72, as well as Amendments 76, in microcosm of a fundamental principle—namely, 77 and others in this group. In so doing, I am keen to that one pillar of our democracy is the balance of focus less on the Brexit-related provisions than on the power between the Executive and Parliament. This constitutional implications of granting Ministers special Bill, if unamended, would tilt that balance quite powers to undertake the Bill’s purpose, while not heavily towards the Executive. To do that would be to limiting and containing such powers and enhancing degrade what will be an historic Act in due course and scrutiny of the resultant secondary legislation. jeopardise the rights of Parliament. These amendments The amendments themselves rein in Ministers’powers and others to come are not about Brexit itself; Brexit from when they are appropriate to only when they are is important and the Bill is vital to help us to secure necessary, and are very straightforward. In the case of that. I want it to pass into law and soon. But the the amendment yet to be spoken to by my noble friend amendments are about something every bit as important Lord Hailsham, “essential”is injected into the proceedings —who is going to guard the constitution if not this as well, giving a threefold choice to your Lordships. House? However, it is a transparent illustration of why the Ministers want their legislation to get through quickly amendments are needed. “Appropriate” is so bland, and painlessly; officials are loyal to their Ministers broad and subjective as to be almost meaningless, as and fancy a quiet life. The other place has an interest, has been said, and it gives the Minister excessive but one that is often secondary to political obligations influence and discretion. “Necessary”, by contrast, is of Members, and the pressure on them from other more specific and requires justification—and I believe events. I hope that my noble friend is listening to this that the courts prefer to handle litigation over “necessary” debate and that the Government will at last respond to than “appropriate”, for reasons one can understand. the case being put to them and respond not just in this Clause 7 is stuffed with powers that need to be addressed clause but throughout the Bill, right up to and including in this way. It is time limited to some extent by Clause 17, perhaps by reference to changes that they subsection (8). I welcome that, and I welcome in have already agreed to the Sanctions and Anti-Money passing the concession on sifting granted by my noble Laundering Bill. Debate in Committee would then friend the Leader of the House in her Second Reading proceed just a little faster. speech. But the clause is one that cries out for tighter It falls to us in this House to guard the gate on control and closer scrutiny. behalf of Parliament and democracy and to uphold The Constitution Committee reported extensively the role of the constitution in protecting both. If the on the Bill in three volumes—a unique event—so the balance between Parliament and the Executive is Government have known for a whole year of the concern lost, the rule of law and our freedoms are at risk. The that we expressed on such matters and have heard it time when we take back control of our laws is not often repeated since. I am no longer a member of the the time to allow the corrosion of our law-making committee, but I plead guilty to being partly responsible process. for the first of those three reports. Again unusually, that report was published before even the White Paper was produced, let alone the Bill itself, a procedure that Lord Bilimoria (CB): My Lords, if I may just follow I rather recommend to Select Committees. It makes on from the noble Lord, Lord Lang, I often say that life very much easier and gives room for one’simagination this House’s role is to be the guardian of the nation. to fly. However, the essence of the report was to To build on what the noble Lord, Lord Wilson, said, recognise that the massive task of legislative retrieval when we go back to the beginning of all this—the would need special powers for Ministers.The Government referendum—it was all about taking back control and repeated that in their White Paper and quoted our sovereignty and not bypassing Parliament. What happened report in support, but they rather cynically omitted with Article 50? The Government tried to bypass and ignored the vital qualification that we had stressed Parliament. Now we have this withdrawal Bill, giving that such new powers had to be accompanied by tighter powers to make and amend law. As the noble Lord, controls and the safeguards that we recommended— Lord Wilson, said, there are over 100 Ministers, and it explanatory memorandums, certification of statutory can be delegated to government departments—once instrumentsbyMinisters,strengthenedscrutinyprocedures again trying to bypass Parliament. and so on. I heard the comment that the noble Lord, Under an earlier amendment, I quoted Dominic Lord Wilson, made about the Constitution Committee’s Grieve, a former Attorney-General, who recently said: recommendation as an alternative to “appropriate”. I “Having just spent four months considering the EU (Withdrawal) am glad to say, “Not me, guv”—I was off the committee Bill … I don’t think I have ever seen a piece of legislation that by the time that report came out. conferred such power on the executive to change the law of the 1185 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1186
[LORD BILIMORIA] without sufficient scrutiny,checks and control, bypassing land by statutory instrument … and where the entire structure Parliament, goes against the ultimate supremacy of was so closely interwoven that the same end could often be Parliament itself. achieved by different routes”. That is a former Attorney-General from the government party. Lord Beith (LD): My Lords, from this side of the Then there was the Strathclyde review. Let us not Committee I shall speak to Amendment 244A, in my forget what happened in 2015 when this House was name, which comes from the Constitution Committee criticised for flexing its political muscle. The review and was mentioned by the noble Lord, Lord Wilson, in said that we should, his opening remarks. The amendment’s purpose is to provide a more objective test and a requirement for “understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the Ministers to state that they have applied an objective House of Lords should retain its veto”. test. Should they have failed to do so, they become We were openly bullied and told, “Don’t you dare accountable for not having done so. That is the value of challenge a statutory instrument again”. In fact, I it. It is in no way exclusive of the series of amendments remember in that debate, the Government went so far in the remainder of the group, almost all of which replace as to say, “Youare threatening the very existence of this “appropriate”with “necessary”. I will come to that in a House if you threaten us any more”. Now we have the moment. I want to appreciate the words a few moments potential for thousands and thousands of statutory ago from the noble Lord who is the former—and much instruments. Are we going to challenge every one of respected—chairman of the Constitution Committee. them and threaten our very existence every day? Do His contribution is one that Ministers really ought to Henry VIII clauses give Governments the power of note. royal despots? We are dealing with wording in this legislation that worries us enough in this context. However, noble Lords should be in no doubt that, if this wording remains 8 pm in this legislation, subsequent debates will take place The main point here is, as the noble Lord, Lord Lang, around the idea that, “It was included in the withdrawal said, our constitution. It is not a written constitution; Bill and there were some very serious issues raised in it is a very delicate constitution. It is like a silken that, so it must be acceptable” and that it must be thread, woven through centuries.That delicate constitution reasonable to use such a shallow test of appropriateness is based entirely on the balance between the Executive, for very far-reaching statutory instrument powers. the legislature and the judiciary. It is those three Numerous other Bills will come before us in the course together; it is not as simple as saying, “These are of this Parliament which have statutory instrument simple things, we’ll just use Henry VIII powers to tidy powers in them, and this and future Governments up things”. The problem is that it might alter not just will draw on the precedent of how this legislation is technical details but the substantive effect of the law. worded. With these amendments, we are trying to protect our As to the distinction between “appropriate” and constitution and our democracy. “necessary”, the suggestion I have heard that Ministers The Supreme Court has also said that it is well do not realise they are open to legal challenge is, I established that, unlike statutes,the lawfulness of statutory think, quite wrong. Ministers are well aware that they instruments can be challenged in court. Does the might be open to legal challenge, and that is why they Minister appreciate that? Even if a statutory instrument prefer “appropriate” to “necessary”. It gives them a gives Ministers broad powers, the courts have established “plump legal cushion”—that wonderful expression of that they will apply limitations. The broader the power, the noble Lord, Lord Wilson—behind which they can the more likely the courts are to intervene to ensure hide. It is just not good enough; we have to find better that the intention of the law in question is not being wording. If Ministers are unhappy with necessity, they altered or undermined. must come up with something more effective. We find the word “appropriate” used in many contexts. It Viscount Hailsham: Not only that, but the more tightly conjures to mind the sort of instructions for a day out constrained the language of the Bill, the more readily that say “Appropriate footwear should be worn”. That the courts will intervene. clearly indicates to the person who has to make the decision that they have a fair degree of discretion—it could mean hiking boots or other firm-soled shoes, as Lord Bilimoria: I thank the noble Viscount for that long as it is not stilettos or ballet pumps. They have a intervention. At the moment, the courts very rarely choice. Ministers are desperately trying to preserve intervene. They had to intervene with Article 50 being choice for when they bring forward statutory instruments put through Parliament; that was fundamental. This under this legislation. House defeated the Government twice by almost 100 votes The problems of the statutory instruments are not each time in two of the biggest votes in the history of confined to Henry VIII provisions, as the noble Viscount, our Parliament—614 of us voted in one and 634 in the Lord Hailsham, pointed out. There is the inability to other. Do we want a situation where this Parliament amend any of these statutory instruments, whether or the Government are continually challenged by the they are Henry VIII in their impact or whether they courts? We do not want to go there, and this is why impact merely on previous statutory instruments. The these amendments are important. inability to amend them grossly weakens Parliament’s I conclude that the power to amend all EU-derived ability to deal with matters that would normally be in primary and secondary legislation by the Government primary legislation. 1187 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1188
I am not only sympathetic to the amendment that was demonstrated by the noble Lord, Lord Wilson, the committee itself has put forward, which has my this evening, and which would have been demonstrated, name on it, or something like it, but I am also very I am sure, with equal eloquence by the noble Lord, supportive of the attempt to find a better word than Lord Lisvane, had he been able to be with us. We in a “appropriate”. So far, at any rate, necessity seems the sense must see ourselves as the servants of democracy, right provision. but with a duty to put some real strength in the directly elected House. Lord Cormack: My Lords, I have added my name I hope that we will have a response from the Minister to a number of amendments that delete “appropriate” this evening that will indicate that he understands and insert “necessary”. They are all in this group. I do what this is about. He, of course, is one of the 109. He not claim any particular merit for that amendment: may be low down on the list, but he is there. Whether the noble and learned Lord, Lord Goldsmith, is, I he is 109, 108 or 73, I know not and I care not—but he believe, the lead name on this amendment. The fact is, is there. I hope that at the very least he will repudiate we have one thing in common. Whether is it “essential”, any notion of exercising power that it is not for him to as my noble friend Lord Hailsham will doubtless seek exercise. We have to address this issue, whether we to persuade us in a few minutes, whether it is “necessary”, think in terms of Henry VIII or Thomas Cromwell or used in the context described by the noble Lord, Lord Oliver Cromwell, all three of whom would have looked Wilson, when he moved his amendment so admirably, upon this as a marvellous mandate. We have a duty. or whether it is a bare “necessary”, I do not mind. I Tonight we are probing, but there will come a night frankly have a slight preference for the wording of the when we must vote if the response is not as it should noble Lord, Lord Wilson. be this evening. We are in a very sad place when, having been told that we were taking back control, what we are doing is The Lord Bishop of Leeds: My Lords, I add my bestowing control. Parliament is bestowing control—if voice to those who are expressing caution. I sympathise this goes through—on the Executive. I have quoted with Ministers. Somehow a balance has to be struck before in your Lordships’ House the famous Motion between the technical freedom and flexibility to deal moved in 1781, I believe, in another place by Colonel with matters as they arise—that is a legitimate concern— Dunning: “The power of the Crown has increased, is and the constitutional questions that have been raised increasing and ought to be diminished”. Substitute this evening. The words matter. The word “significant” “Executive” for “Crown” and that is what this is all is one of my pet hates, where people use it because about. I also think of the immortal words of my friend they do not want to find a more precise word. You the late father of my noble friend Lord Hailsham, who always want to ask, “Significant of what?”They probably talked about an “elected dictatorship”. mean, “It’s important” or “It matters to me”. Are we really seeking to leave the European Union— “Appropriate” is another one. It is a word that which I believe is a foolish step—to bestow on the creates space when we do not want to be precise—but Government the power which Parliament should take? when you are dealing with matters of law you need That is the fundamental question. We should not precision. It seems to me that the very simple mechanism bestow the power on or allow any Minister—whether of changing “appropriate” to “necessary”, with some he or she be ever so high or ever so low, whether he or criteria by which it could be deemed to be necessary or she be at the top of the 109 or at the bottom, it matters unnecessary,offers the sort of balance that the Committee not—to change the law of the land, and then indeed is looking for. extend it, as the noble Lord, Lord Wilson, pointed out in his admirable speech, to public bodies and to the 8.15 pm courts. We live in a parliamentary democracy. Your Lord Campbell of Pittenweem (LD): My Lords, the Lordships’ House rightly has much less power than noble Lord, Lord Wilson, said that it was 50 years the elected House, but we can act as a check and a since he had practised as a lawyer. Perhaps I may balance and as an encourager to those in another observe to him, once a lawyer, always a lawyer—and place. These are probing amendments tonight, of course, he certainly demonstrated that in the way in which he but I am confident that this will come to a vote on introduced this amendment. The effect of the statute Report, and we should say to our colleagues in another before us is to provide an unfettered discretion, and we place, “Do not give up the power which you exercise as should be extremely slow to provide unfettered discretions representatives, not delegates, of your constituents, to anyone. You would not give an unfettered discretion because if you do that, it will be a real nail in the coffin to the captain of a golf club. The idea that we will give of democracy”. 109 Ministers an unfettered discretion seems to me to I personally believe that a referendum is inimical to fly in the face of all constitutional propriety. representative democracy. But, as we have said before, It is not even the Secretary of State who is asked to we are where we are. We are moving away from the exercise these powers. That frequently appears in statutes European Union, but we must move away as a where a power is afforded. In this case it is any parliamentary democracy,where power ultimately resides Minister of the Crown—and, added to that, public not in No. 10 Downing Street, the Treasury, or in any authorities, as widely defined. It is difficult to imagine ministerial office but in the Chamber at the other end public authorities understanding the whole question of the Corridor.Your Lordships’House has a particularly of discretion, as we see time and again in the courts important role in stiffening the sinews of those at the when judicial review is successfully taken against local other end of the Corridor. There is an enormous authorities, for example. As the noble Viscount, Lord wealth of experience in your Lordships’ House, which Hailsham, pointed out a moment or two ago, if you 1189 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1190
[LORD CAMPBELL OF PITTENWEEM] which we sometimes forget. By the way, as the sunset have the power to make by regulation such provision clause possibilities in Clause 8 have been mentioned as you consider appropriate, the prospects of judicial by at least one speaker, in paragraph 67, the Bar Council review are nil. There will be no review because, in any adds: circumstance where a subjective test has been imposed “While we recognise that the Henry VIII power in all three or offered to the Minister, there can be no challenge. clauses (7-9) is subject to sunset provisions, we do not think that Necessity, on the other hand, is capable of challenge this is sufficient to address the above concerns. As noted in the and leaves open the whole question of judicial review introduction to this paper, the operation of the amending powers where the test of reasonableness arises in the course of and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period the action—in this case of a Minister, or indeed of any or under the Withdrawal Agreement”. of these public authorities. I agree with the passionate remarks of my good friend, When the bus with “£350 million a week” was going the noble Lord, Lord Cormack, about the dangers around the country, and when those who emerged facing this Parliament—mainly the other House, of from it, including the blonde bus conductor, told course, but also this one—in allowing these dangerous people, “Wewant to take power back from the European provisions to go through without any amendment. I Union and Brussels”, no one said, “We want to take anticipate a major expression of unease, to put it mildly, power back so we can give it to 109 Ministers or public when Report stage comes along. I hope and pray that authorities”. If they had said that, I rather fancy that will be so, and we look forward to the Minister speaking the bus would not have received the generous welcome in the framework of that need to assuage our anxiety that it did on many occasions. when he comes to reply. Lord Dykes (CB): My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, Viscount Hailsham: My Lords, I rise to speak primarily all saying similar things, and I entirely concur with —subject to pre-emption, whatever that means—to what was said. Therefore, I can be very brief. First, I Amendments 73 to 79 and Amendments 117 to 119, thank my noble friend Lord Wilson for his remarks. I which are in my name. apologise to him for missing the first minute and a half of his speech because I naively thought that two I think we ought to start the debate—although we government Statements would last a bit longer than have started it already—by reflecting on how very they did; they were very brief indeed. I surmise that wide the powers contained in Clauses 7 to 9 are. They my noble friend referred to my noble friend Lord are powers exercised by regulation: mostly by the Lisvane, a very good friend to many of us. I assume he negative procedure,but some by the affirmative procedure. is on onerous public duties in Herefordshire. Sadly, the However—this is the critical point—in both instances, noble Lord, Lord Tyler, cannot be present due to the regulations when laid cannot be amended. That illness. Therefore, two sponsors of the amendment are raises an issue that I hope this House will come to on sadly unable to be here but that in no way weakens the some subsequent occasion, because I have a number strength of this message for the Government. I hope of amendments in my name on that very subject. the Ministers on the Front Bench will listen very These powers are very wide-reaching. One way of carefully to these words. ascertaining how significant they are—I hope the right It is also worth noting that, apart from a later big reverend Prelate will forgive me if I use the word grouping, this group contains the largest number of “significant” in this context—is to look at paragraph 2 amendments of any group since the Committee of Schedule 7, which lists the provisions that can be proceedings began. This is the subject that most exercises made only by the affirmative procedure. I cite a few the Members of this Committee and, I think too, examples: the creation of a public authority and quite a number of MPs although they are sometimes presumably the powers to be given to it; the transfer of under much greater pressure for obvious reasons not legislative powers from an EU entity to a UK-based to say too much about it. public authority; the levying of fees without specific I was very struck by what the noble Lord, Lord limit, which I am sure noble Lords know we will come Sharkey, said and by what he said representing the to later in Committee; the creation of criminal offences noble Lord, Lord Tyler. Since I am an amateur and that attract a custodial sentence of up to two years, not an expert on these matters, I was impressed by the which, again, we will come to later in our debate; and comments of the Bar Council on its worries about the creation of powers to legislate or amend existing these matters. In paragraph 60 of its general statement, powers. These powers are not trivial in character. I it said: have not sought to identify the various powers that could be exercised by way of the negative procedure, “Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate because their name is legion. effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) There is one fundamental rule in politics, which I includes an open-ended power to make ‘any provision that could have learned from 31 years in the House of Commons: be made by Act of Parliament’. There are comparable Henry VIII if you give powers to Ministers and officials, those powers in Clauses 8(2) (in respect of regulations to ‘prevent or powers will be abused—sometimes by design and remedy’ any breach, arising from Brexit, of the UK’s international obligations”. sometimes by inadvertence, but the abuse will happen It went on to say in paragraph 61: and that is certain. It is especially so when the powers “We consider that these provisions (and in particular Clause 7) are created by secondary legislation because the continue to raise serious concerns both from the perspective of parliamentary oversight is slight and ministerial oversight the rule of law and the sovereignty of Parliament and in respect of is often non-existent. So the question your Lordships legal certainty”, should be asking—I agree with my noble friend Lord Lang 1191 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1192 that it is a pity more noble Lords are not asking 8.30 pm themselves this question tonight—is whether the language Lord Wallace of Saltaire (LD): My Lords, my name in the Bill is sufficiently tightly drawn to prevent abuse. is on some of these amendments. I will be extremely The answer to that question is manifest to all of us brief. We are now at the core of the Bill, and at the and all noble Lords who have spoken: no. The Bill core of how the Government respond to it. I cannot does not prevent abuse; it enables abuse. recall reading two such critical reports from committees The powers given to Ministers are “appropriate”. of this House as the two we have had on these clauses— That is a weasel word. Nobody is better placed than I for example the suggestion that Clause 9 is wholly to describe it as such. It is a subjective word, very unacceptable and the suggestion that Clause 7 leaves difficult to define in advance, impossible to challenge very considerable uncertainty, both of which are from and non-judicable. That is why, when I was a Minister, the Delegated Powers Committee. I therefore ask the I used it often—at the Dispatch Box, in drafting and in Minister to offer us the prospect that the Government correspondence. I knew full well, as does every person will come back on Report with their own recognition who has stood at the Dispatch Box, that “appropriate” of the strength of feeling in this House. Without means precisely what the Minister wants it to mean. question, the Government will lose heavily on this the The noble Lord, Lord Campbell, is quite right about first time it is tested, and quite possibly again after it that. Might I suggest the Corbyn/Johnson test to your has gone back to the other place if the Commons Lordships? It is very useful. I look to my side of the sustains it. House and ask, “How many of your Lordships want We are in a position at which we need from the to see Mr Corbyn possessed of these powers?” I now Government some reassurance on these constitutional turn to the other side of the House, lest noble Lords issues, as well as these issues of trust, as they put think I am being partisan, and ask, “How many of through a Bill with a huge range of flexibility. We need your Lordships want to see Mr Johnson possessed of reassurance on the Government’s future intentions, as these powers?” The joke is that you can reverse the their future intentions on much of this are still not question and get the same answer. entirely clear. I simply ask the Minister to be generous We should not allow the draft as it is. I accept that and to stretch his freedom of action as far as he can in the distinction between “necessary” and “essential” is the way he responds. pretty minor. I can live perfectly well with the word “necessary”. “Essential” is one notch higher in the hierarchy of requirement but I accept that “necessity” Baroness Whitaker (Lab): My Lords, the noble has been hallowed by legislation in the past. I encounter Lord, Lord Lang, pointed out that we are a bit thin on that word frequently in regulatory law, and the noble the ground for such an important set of amendments, Lord, Lord Campbell, was absolutely right to touch but the Minister should know that there is behind us on the point of judicial review. If you use the word an army. I have had more representations on Clause 7 “necessary”, it makes things easier to challenge. There than on any other part of the Bill—representations have been many appeals in the regulatory framework from national organisations, human rights organisations, where the courts have held that the test has not been advocacy organisations, legal organisations, professional laid out. organisations, and from individuals. There is very widespread civic concern over these clauses, and the I want to comment on two other amendments Government should heed it and accept these amendments, I have ventured to propose. Amendments 74 and 117 which have such widespread support also in your require the Minister to have “reasonable grounds” for Lordships’ House. his or her decision on the need to trigger the regulation- making powers. I will be open about this: my purpose is to tighten the test, to make it judicable and to limit Lord Mackay of Clashfern (Con): My Lords, the the discretion. I would very much like to know from existence of these powers in the Bill has created an the Minister why he objects to the use of reasonable apprehension in a lot of people that the Government grounds as the criterion for exercising the power. I am are proposing to use the powers in some way to sure he is not going to say that he wants to rely on undermine something that is valuable to them. It is unreasonable grounds; that is not, I think, an argument therefore important—apart altogether from the argument he would like to put forward. We are entitled to know that examines the detail—that we examine this carefully. the justification. The noble Lord, Lord Wilson of Dinton—with his I have one very small point on Amendment 75, background of great success as a civil servant, no which includes a reference to redundancy. What does doubt contributed to by his early experience as a that reference add to what is already covered by the lawyer—has moved the amendment in a way that has retained part of Clause 7(2)(a)? It comes to this: the made it extremely clear. It is quite clear to me that main issue for this House is to require a test of necessity is a better test on which to leave these powers necessity to be imported into these three clauses and than the discretionary test of “appropriate”. It is not elsewhere in the Bill where the Government want us to absolutely right that discretion is not subject to judicial accept a lower threshold of need—or, more precisely, review, but at least an objective test is certainly more put no threshold at all. I regard this as matter of likely to lead to successful judicial review if it is considerable importance and I want to know—as I am transgressed. sure the Committee does—why the Government want We have to remember the huge task involved in us to prefer a word that gives the maximum discretion trying to put these two systems together; the European to Ministers, but the minimum control and influence system, which has been here for 45 years, has been to Parliament and the courts. working alongside our system and kept separate from 1193 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1194
[LORD MACKAY OF CLASHFERN] privileged to serve on the Constitution Committee, it over all that time. That is by no means an easy task. when he chaired it. I agree also with the noble Lords, Indeed, what we already discussed with regard to Lord Beith, Lord Wallace of Saltaire and Lord Campbell Clauses 2 and 3 illustrate that. It is difficult and time of Pittenweem. Everybody has taken the same position consuming, and we must ensure that the solutions we in relation to that. suggest to the Government are practical and will Let us look at the key amendment, Amendment 71, enable this to be done in a reasonable time so that the to which I am privileged to have added my name, just statute book can be right on Brexit day. to note the importance of what it does. It would I anticipate that the test of necessity will be an replace the statement that “the Minister considers it easier one to apply for those entrusted with the power appropriate”with “it is necessary”. As a former Minister, than the test of what is appropriate. The latter involves as a former adviser to Ministers and as a practising an element of judgment, which is not always easy to lawyer, I fully see the significance of that change. I exercise; whereas if it is obvious that these two bits do know as a lawyer that if I am able to say to the judge, not fit together, it is necessary to do something about “All that is required is that the Minister considers it it. As the noble Lord, Lord Wilson, said, it is not appropriate—how can you say that he did not? How necessary to circumscribe the solution. The argument can you second guess that?”, I am home and dry. If, on that necessity suggests not only that the amendment is the other hand, I have to show that it is necessary—not required but also what particular amendment is required just in the Minister’s decision, not just on reasonable stretches the matter a little far. So long as it is necessary grounds, but that it is in fact necessary—then that is to do it, that is a sufficient test for our purpose, and the test that the court has to undertake in order to then it is for the Minister to do his best to sew these satisfy itself. The point behind these amendments is two pieces together. that nothing less than that will do to enable this huge I am somewhat alarmed at the survey by the noble transfer of power to the Executive from this House. Lord, Lord Wilson, of the people entitled to use this I do not need to repeat the remarks made by other power, and the Minister may well have something to noble Lords about how taking back control should say about that. However, there is a lot of work to do, not mean taking back control by the Executive—that and we do not want to overwork the Ministers with is not what anybody had in mind. I do not need to necessary adjustments when they ought to be doing repeat the remarks about the number of Ministers that something else. There is certainly plenty to do between this gives power to. I am not even sure that the figure now and Brexit. of 109 is right. I recall, in government—no doubt the In addition, it has been said that this is surrendering Minister will tell me that it does not apply here—that the power of Parliament to the Executive. To an extent all Ministers can act, and often do act, by their officials. that is true, but Parliament retains a veto in respect of The Carltona principle means they can sign the every single regulation, either by a negative or an instruments, so it may mean that the 109 is multiplied affirmative resolution. It is true that we do not want to manifold. I have no doubts about their good intentions, have thousands of these if we can possibly avoid it, but this is not what our system requires, and we should apart from anything else. But there is an element of not be giving it up in these circumstances. control there. How practical that would be is, I think, Other noble Lords, including the noble Lords, Lord doubtful. There is an urgent need now to circumscribe Bilimoria and Lord Dykes, and the right reverend these powers so that they work properly and effectively Prelate the Bishop of Leeds, have also spoken powerfully but not excessively. As I said, a lot of people have in favour of these amendments. worries about human rights, equality rights and a I have a couple of other points to make, as most of whole lot of other rights. Sometimes people have what I wanted to say has already been powerfully and spoken in conversation or in observations to the press clearly expressed by noble Lords. The most important or whatever, which does not represent the Government’s point is the one I started with, which is that the Minister policy.This helps to inflame the idea that the Government must see the unanimity of view, as it appears at the are using these powers to take away all that has been moment, around the Committee about the change that so dearly won. I do not think that is true, but we needs to be made. We can debate whether it is essential should try to remove the possibility that this idea can or necessary. I rather agree with the noble Viscount, be represented. Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the Lord Goldsmith (Lab): My Lords, these are hugely better one to have, but the end aim is the same. That it important amendments. The Minister will have noted is not a decision for the subjective view of the Ministers that not a single Member of the Committee has spoken is the other key point on which we agree. in favour of the present position in the Bill. From all One point that I want to deal with, which has not sides of the Committee, it has been stated that the Bill, had much discussion so far—although the noble Lord, as it stands, is not acceptable. I am sorry that the noble Lord Beith, raised it—is Amendment 244A. It proposes Lord, Lord Lisvane, is not present today, for reasons that there should be a statement by a Minister as to that we all entirely understand. Noble Lords will recall the need for the change, and it is not simply a policy what he said at Second Reading, when he talked about change. There is merit in that proposal, I would suggest, this as the biggest transfer of power from Parliament though not as a substitute for the amendments we are to the Executive in peacetime. I entirely agree. I agree proposing. I draw attention to the similarity with with what has been said by the noble Lords, Lord Section 19 of the Human Rights Act, an excellent Wilson of Dinton, Lord Cormack and Lord Lang of provision which requires that a Minister has to certify that Monkton—with whom, or rather under whom, I was a piece of legislation is compatible with the convention 1195 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1196 rights. We see it on the very front of this Bill itself. I The noble Lord, Lord Wilson, asked me about the am sorry that the noble and learned Lord, Lord Irvine number of people who will be able to exercise this of Lairg, is not in his place. He had a lot of involvement power without parliamentary scrutiny—a question that in making sure that that worked, by insisting that I suspect is almost impossible to answer. I think that when it came to certifying that legislation was compatible, the main issue is not the number of people but the it was not just on a wing and a prayer. number of limitations on the exercise of that power. The power is time limited and clearly limited in what Viscount Hailsham: I am grateful to the noble and it can be used for. It may only prevent, remedy or learned Lord. Taking his point, if you were to combine mitigate deficiencies in EU law, and of course secondary the certification together with the requirement that the legislation is subject to well-established parliamentary Minister had to have reasonable grounds for triggering procedures. Where legislative powers are sub-delegated regulatory power, then one has a very high degree of to public authorities, this will always be subject to the protection, does one not? affirmative procedure. I am pleased to have the opportunity to revisit what Lord Goldsmith: I am grateful to the noble Viscount. is clearly a very important issue in the context of the I would go further. First, I would say that the amendment Bill. The Government will place some additional draft needs to change the test so that it is “necessary”, not examples of statutory instruments or parts thereof in “considers necessary”, not “considered on reasonable the Library of the House. That is something that a grounds”. Secondly, the way the Human Rights Act number of noble Lords have asked for in meetings certification works is that it is not enough for the that I have had with them, so I will ensure that that Minister to have “reasonable grounds” that it may be happens—most likely tomorrow. compatible. What is required—at least when I was in I have listened with interest to the many contributions government, and as a result of the diktat that was today, and to the extensive contributions of the given to the Civil Service—is that the Minister must Constitution Committee, which I had the pleasure of have legal advice that, more likely than not, the court speaking to this morning along with my colleague in would agree. I am glad to see the Minister nodding the other place, the Solicitor-General. I have read the because that means that the same principle is being reports of that committee and of the Delegated Powers applied under this Administration as under the and Regulatory Reform Committee, which have very Administration in which I was privileged to serve. much helped to frame our thoughts on this issue. Therefore, I take the noble Viscount’s point, but it is important that it is not just a consideration but an As a number of noble Lords have said, both those actuality based not on reasonable grounds but on fact. reports go into great detail on the scope of the delegated Obviously there is some judgment to be made about “fact” powers. As many noble Lords will also be aware, they but it needs to be clear and there might, in addition, be come out with quite different recommendations. As I a role for something like Amendment 244A. said at Second Reading, we are approaching this matter in a spirit of collaboration. The Government are looking This is the second time today that this Committee very closely at how the powers in the Bill are drawn has considered the use of the word “appropriate”. and how they will be exercised, particularly in the light Those who were not able to be present may wish to of the committee recommendations and developments read the report of the earlier debate when we considered in other pieces of legislation. the use of the word “appropriate” in rather different circumstances—whether judges could and should rely As the Constitution Committee notes, comparable on European case law in reaching decisions and whether arguments were made during the passage of the sanctions it was enough that they should find it relevant or Bill through this House and a mutually agreeable appropriate. One noble Lord who is not in his place position was found in that instance. That has clearly suggested that the judges could use the law if they informed the committee’s recommendation and we are found it “helpful”. My worry is that that is exactly receptive to the arguments made in its report. I am what the Government think “appropriate” means here. confident that a mutually agreeable position will be If this power means that Ministers can make regulations found. and changes because they think it helpful to do so, As I will explain in a moment, the Government do that is not what this House should allow them to do. not see the DPRRC’s recommendation as workable. However, we would very much like to talk to noble 8.45 pm Lords following the debate, with an eye to coming The Minister of State, Department for Exiting the back to this issue on Report. European Union (Lord Callanan) (Con): My Lords, I As noble Lords will appreciate, the situation that thank noble Lords very much for what has been an this Bill responds to is, quite simply, unprecedented. A excellent debate. I use the word “debate” but only one vast amount of EU law is being transferred to our point of view has been expressed and I have heard the statute book, including thousands of EU regulations. message from all sides. However, I shall address the As such, the programme of secondary legislation to issues under consideration. ensure that this law operates effectively must match I say, first, to my noble friend Lord Cormack that that. In the face of such a task, it has always been clear he has put an intriguing thought into my mind. I will that the Government will need relatively broad delegated speak to my officials first thing tomorrow morning to powers to deliver a functioning statute book. Indeed, find out where I, as a Minister of State, come in this the Constitution Committee outlined in its interim list of 109—I suspect more towards the bottom than report that “relatively wide” delegated powers were the top but we will find out. inevitable. 1197 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1198
[LORD CALLANAN] purposes. I accept, however, that noble Lords have I understand that there are noble Lords who have principled and legitimate concerns and we will ensure had concerns about delegated powers for some time, that these are addressed and that the reasonableness of and the Government are keen to continue listening to a Minister’s courses of action is made clearer. Given suggestions in order to improve those areas of the Bill. the views expressed today, I would like to engage in That listening process started during this Bill’s passage further discussions with noble Lords with a view to through the other place, where a number of changes returning to this issue on Report. were introduced to reduce the scope and increase the Amendments 71, 72, 76, 77, 78, 79, 116, 118, 140, parliamentary scrutiny of the delegated powers.However, 229, 253, 254, 257, 258, 264, 265, 276, 277, 290 and we cannot significantly restrict the scope of these 291, which were tabled by noble Lords including the powers, which, it is acknowledged, need to be broad. noble Lord, Lord Lisvane—to whom I spoke yesterday Let me deal directly with the concerns raised by the and I understand why he is not in his place today—the noble Lord, Lord Wilson. Much of the concern about noble Lord, Lord Foulkes and the noble Viscount, the delegated powers focuses on the use of “appropriate” Lord Hailsham, seek to exchange “appropriate” for to describe the discretion afforded to Ministers when “necessary”, about which we have had a great deal of making regulations to correct deficiencies. In case debate, in the main powers and schedules in which it there is some misunderstanding here, let me be clear: can be found. I understand noble Lords’ concerns but, “appropriate” in Clause 7 does not give Ministers as I have stated, this would have a serious impact on unrestricted discretion to correct anything that they our vital programme of secondary legislation to prepare may wish or like. Corrections must not be appropriate our statute book for exit day. “Necessary” is a high bar per se; they must be appropriate to correct the particular to meet. The courts have said that the nearest paraphrase deficiency they are addressing. The threshold for for “necessary”is “really needed”, but such a test would ministerial decisions is set firmly within the context of be too constrictive. those purposes. I appreciate that there is a degree of subjectivity to Lord Newby (LD): Can the noble Lord give an these tests—but that is true of almost all tests, and it is example of where something is not really needed? important to acknowledge that there are limitations Surely the whole point of this legislation is only to do on the power. Parliament polices the Government’s things that are really needed—not to do anything that interpretation of its vires to act through the mechanism you think, when you wake up in the morning, might be of the Joint Committee on Statutory Instruments, a jolly good idea. which I have no doubt will take a keen interest in instruments under this Bill; and ultimately, as a number of noble Lords have pointed out, these tests are litigable Lord Callanan: If the noble Lord will have a little in the courts. So we cannot responsibly remove patience I will get on to that in a second. “appropriate” from the Bill. If regulations could only make “necessary”provisions, I will now delve into the detail of the various the powers would be heavily restricted to a much different permutations of amendments seeking to restrict smaller set of essential changes. For example, if the the scope of the delegated powers.The first amendments I Government wanted to change references in legislation would like to discuss are Amendments 201, 243 and from euros to sterling, we would expect such a change 245, tabled by the noble Lord, Lord Bassam, which to be considered “appropriate” both by the courts attempt to ensure that Ministers have considered that and, I hope, by this House, but it might not be considered exercises of the main powers are made for good reasons “necessary”. and are reasonable courses of action. These match the We might manage to ensure that our statute book is Constitution Committee’srecommendation, and a smaller in a legally operable state, but it would not be in its group were added to the Sanctions and Anti-Money most coherent form, or arranged in a way that best Laundering Bill. promotes our national interest. I am sure that this Amendments 74, 117 and 139, tabled by my noble Committee does not intend to restrict the Government friend Lord Hailsham, seek to write into the Bill that from legislating coherently or in the national interest, Ministers’ consideration of the appropriateness of any but that may be the unintended consequence of exercise of the delegated powers must be made on amendments which swap “appropriate”for “necessary”. reasonable grounds. This is the right type of approach I note that some of the amendments in this group in not altering the fundamental scope of the powers. contain wording suggested by the DPRRC in its report on the powers in this Bill. In particular, I was interested Lord Cormack: Is my noble friend saying that he in the assertion that: has made his mind up—or the Government have made “The operative test in Clause 7 should be whether it is necessary their collective mind up—on retaining “appropriate”? to deal with the problem, not whether only one solution follows inexorably”. I first highlight that I do not believe that these amendments Lord Callanan: If my noble friend will forgive me, break up the necessity process in the way that the I will discuss that in a second. committee intends. I also question the merits of breaking Ministers make their decisions on secondary legislation up the necessity test in the way that the committee based on reasonable grounds in the normal course of suggests. In its report, the committee cites the example events. The use of these powers will be subject to the of a deficiency in which there is: usual public law principles designed to ensure that the “A requirement to collect and send information that will no Executive act reasonably, in good faith and for proper longer be accepted by the EU”. 1199 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1200
The committee states that it, Amendment 75, tabled by my noble friend Lord “is clearly a deficiency that it is necessary to remove from the Hailsham, allows me the opportunity to expand upon statute book: it cannot be right to retain a redundant legal duty the reasons why we are taking the correcting power that amounts to a waste of time, effort and public money”. and to build upon the arguments made in previous However, I question whether this change is strictly days of debate. Areas of our domestic law, such as necessary, or whether it is merely appropriate. The those relating to EU obligations, will be redundant committee asserts that it cannot be “right” for this when we leave the EU. The Bills repealed by Schedule 9 arrangement to continue—and I agree with it—but is are an example of this. Some noble Lords will consider it strictly “necessary” that it be removed? What great that having provisions that do nothing on the statute harm, after all, would be done if the information were book is not harmful. Indeed, the Easter Act 1928, still sent? The statute book would continue to function, which was never commenced, continues to sit on the albeit illogically and not in the public interest. But is it statute book with no effect and causes no harm. My necessary, in a strict legalistic sense, to have the statute noble friend Lord Hailsham and the noble Lord, Lord book working logically and in the public interest, or Campbell, also argued that there is no legal recourse are all our changes merely appropriate? In these sorts under the use of powers under Clause 7. That is not of instance we cannot with any certainty predict the strictly correct. If the threshold set out in the Act is way in which a court might rule. It is precisely to guard overstepped the regulations can be struck down by against such a decision that the Government cannot judicial review. support the suggestion made by the committee. 9 pm Viscount Hailsham: Is the Minister saying that he will not accept these amendments because he might Lord Campbell of Pittenweem: The noble Lord was be defeated in court? If so, that is a thoroughly bad helpful in trying to give an example for something else. reason. Could he give an example of where something that was “appropriate”could not be covered by the principle Lord Callanan: I think I have made my position of necessity? clear on that but, nevertheless, I also said that we are listening and endeavouring to satisfy the concerns of Lord Callanan: I do not have any additional examples noble Lords. beyond the ones I have already given, but I will certainly Amendments 73, 119 and 141 tabled by the noble write to the noble Lord with alternative information Viscount, Lord Hailsham, and also spoken to by my on that. noble friend Lord Lang, meanwhile used “essential” However, the Government and I believe that a rather than “appropriate” to limit the discretion of majority of noble Lords in this House will agree that Ministers in exercising the delegated powers. This the statute book is not truly effective unless it is tidy. really is very similar to the amendments which propose The Bill is designed to provide clarity and certainty on the use of “necessary”. I think that a court would likely the law; if we cannot remove or correct these redundant interpret the meaning of “necessary”and “essential”—in provisions this goal will be undermined. However, this context—in much the same way and, therefore, I having said all that, as I have set out, I would be very will not repeat the arguments that I have already made. happy to engage in further discussions with noble Lords. I have very much heard the messages given Lord Cormack: I beg my noble friend to talk to his from all sides of the Committee with a view to returning ministerial colleagues and think again, otherwise the to this issue on Report. On the basis of those assurances, Government will suffer the most massive, crushing I hope that noble Lords will feel able not to press their defeat when this comes up on Report. amendments. Lord Callanan: I said at the start that I am setting out a position, but I have heard the messages that Lord Wilson of Dinton: My Lords, I thank the came to me from all sides of the Committee and I very 13 noble Lords who spoke on the amendment, all of much take on board the point that my noble friend whom were unanimous in their support of the need to makes. I shall state again that, despite their breadth, change Clause 7(1). There was a lot of support for the these are not powers designed to deliver major policy substitution of “necessary” for “appropriate”. I am changes and they can only be read in light of their not going to go through what was said because, first, I purpose. For Clause 7(1), that is to “prevent, remedy agreed with everything; and secondly, it was said so or mitigate” deficiencies arising from withdrawal. eloquently that it would be otiose for me to add to it at Amendment 244A, tabled by the noble Baroness, this hour of night. Lady Taylor, the noble Lords, Lord Beith and Lord The Minister has clearly heard the voices of so many Dunlop, and the noble and learned Lord, Lord Judge, noble Lords in favour of some change to Clause 7(1). touches on a point to which I will return to in more I say respectfully that he seemed to be speaking with two detail later, but I will stress now the risks of introducing voices. One was a clear, fierce defence of “appropriate”. additional legal uncertainty by creating new and untested I have to confess that I found some of it surprising. I definitions to the law. However, I am conscious of the would have thought, faced with EU retained lawexpressed need for transparency in this process and we will look in the euro, that that would be a deficiency that one to see how,in line with developments and other legislation, needed to correct and that it would be necessary to we can ensure that ministerial decision-making about correct it. However, I will study what the Minister said the appropriate exercise of the powers is more transparent with interest. On the one hand he spoke with a fierce to the Committee. voice defending the present drafting. On the other, he 1201 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1202
[LORD WILSON OF DINTON] I believe,a meaningful indication of the type of deficiencies referred three or four times to the need to discuss which might arise in it, or the significance of the before Report. At one point, he said that he was sure correction that needs to be made. that a mutually agreeable position would be found. We To be ready for exit day a large number of fairly need to study exactly what he said. Against that straight-forward changes will need to be made to primary background, I beg leave to withdraw my amendment. legislation in exactly the same way as in secondary legislationmadeundertheECA.Forexample,Section42(5) Amendment 71 withdrawn. of the Employment Relations Act 2004, concerning information and consultation, will require amendment Amendments 72 and 73 not moved. as outlined in the draft regulations the Government have already published. This power relates to the implementation of a directive. This directive has already Amendment 73A been implemented in our domestic law and the relevant Moved by Baroness Bowles of Berkhamsted implementing legislation will be converted to retained EU law by the Bill. Once the UK has withdrawn from 73A: Clause 7, page 5, line 7, at end insert “but not to the extent that retained EU law is encompassed by section 2(2)(b) to the EU, this power will have no practical application. I (d), save in respect of deficiencies as defined in subsection (2)(g) hope noble Lords will accept that we need to be able to of this section” make appropriate corrections to such deficiencies. The power therefore needs to be broad enough to allow for corrections to be made to both primary and secondary Baroness Bowles of Berkhamsted (LD): My Lords, legislation for the full range of deficiencies. Textual when we discussed Clause 2 and the Constitution and technical changes must be made in primary legislation Committee’s amendments, I said I did not wish to if we are to have a functioning statute book on exit exclude the three paragraphs that the Constitution day. Committee wanted to exclude; I wish to exclude them instead from amendment under this paragraph. With The Government’s contention is that what matters the discussion we just had about what is necessary is not the status of the law that is being amended but rather than just appropriate, to put as much as possible the purpose of the amendment. Indeed, some provisions beyond the temptation of amendment by the Government of secondary legislation made under Section 2(2) are seems to be a good idea. That was the approach I extremely important, which is why the Government outlined previously. As far as this clause is concerned, have provided for the sifting committee and affirmative it is in line with the Constitution Committee and with procedure to ensure that all regulations are subject to the Bingham Centre report, and in view of the state the appropriate level of scrutiny. For example, much of my voice, I think it is best if I just say that I beg to of the vital statutory protections of the rights of move. workers in this country lies in regulations made under Section 2(2) of the ECA. We have already published details of some of the corrections that will be required Lord Callanan: My Lords, I am tempted to send here, and I hope they have laid concerns to rest. They some cough sweets to the noble Baroness to help her: are also representative of the type of corrections that she certainly has my sympathy, and I suspect the will arise throughout the statute book and will need to Prime Minister’s sympathy, for the difficult position be corrected to ensure that important areas of law she is in. I am grateful to her for the amendment and continue to function. this debate. I hope I have persuaded the noble Baroness of the The noble Baroness has proposed to limit the Government’s position that it is the substance of the Clause 7(1) power so that it is only possible to correct change, not where it is being made, that matters, and deficiencies in domestic legislation in two circumstances. that she therefore feels able—if she can do so—to The first is where the deficiency is of any type provided withdraw her amendment. for in this Bill and that the legislation was a statutory instrument made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the European Communities Act. The Baroness Bowles of Berkhamsted: My Lords, I beg second, for all other EU derived domestic legislation, leave to withdraw the amendment. is that inappropriate EU references are the only type of deficiency which may be corrected. Amendment 73A withdrawn. I understand the noble Baroness’s well-intentioned desire to, where possible, protect from amendment Amendments 74 to 79 not moved. legislation which has already been considered in detail by this House. However, while Section 2(2) of the ECA has been a crucial tool in the Government’s Amendment 80 implementation of our EU obligations, it is far from the only way the Government have implemented EU Moved by Baroness Hayter of Kentish Town obligations in the 45 years of our EU membership. 80: Clause 7, page 5, line 39, leave out subsection (3) Indeed, many noble Lords have been vociferous in encouraging Governments past and present to do more under primary legislation and specific powers Baroness Hayter of Kentish Town (Lab): My Lords, and less under Section 2(2). Furthermore, whether a I will speak also to Amendment 82, which itself is deficiency is in primary or secondary legislation is not, amended—or,in truth, corrected—by Amendment 82A. 1203 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1204
Amendment 80 is pretty simple and is very much in themselves in subsection (1), they brought it back in line with the amendments we have debated today, subsection (3). It does not seem to have been noticed which aim to restrict the very wide powers that at the other end. Ministers—be they Minister number 1 or number 109 In fact, the Government seem to have portrayed it —have dreamed up for themselves in this Bill. The as some kind of limitation in itself, but I do not read amendment would remove from Ministers the discretion subsection (3) like that. Having purported to restrict to extend the definition of what constitutes a deficiency Clause 7(1) somewhat, in response to the criticisms in in retained law. That is important, given that Ministers the other place, the Government then attempted to have taken considerable powers to correct what they put back the greater latitude in subsection (3)—that consider to be deficiencies. So it would be a two-way Ministers can regulate if there is a “similar kind” of gain for Ministers: first, they could extend what they deficiency. What on earth is “similar”? Of course, that define as a deficiency and then they could use their begs a big question, but it seems to me that this was powers to correct it. not properly examined in the other place. It just got The main thrust of Amendment 82 is to prevent slipped in as part of a response to concerns but it secondary legislation under Clause 7 from being able actually adds to the concerns about ministerial powers. to change the Equality Act 2010 or subordinate legislation It certainly does not remove them but inserts a new made under that Act, or, indeed, later legislation, as in cause of worry.So I fully support Amendment 80, which Amendment 82A. Again, it is about not reducing the would delete subsection (3), because subsection (3) rights and remedies that are available under EU retained undoes the good work that was done in a modest law. While we were drafting Amendment 82 we also tightening-up of Clause 7(1). put in wording to restrict the ability under Clause 7 to impose taxes, fees, charges and to create quangos or Baroness Whitaker: My Lords, I support my noble introduce new criminal offences under secondary friend’s Amendment 82. Yet again it is the issue of legislation. However, as I have alerted the Minister, we using secondary legislation under Clause 7 to make will not deal with that at this point because three changes, in this case to the Equality Act 2010 or to separate groups are coming up and we will discuss the subordinate legislation made under that Act, or to reduce issue of criminal offences and fees later. The important rights or remedies under EU retained law, thing for now is not allowing Ministers to extend the “in comparison with the position immediately before exit day”. definition of deficiency or to use the regulations under Your Lordships’ Committee made its views on the Clause 7 to change the Equality Act and the subordinate abuse of Clause 7 abundantly clear during the earlier legislation that flows from it. I beg to move. debate. Surely the same reasoning applies.
Baroness Ludford (LD): My Lords, I support Lord Beith: My Lords, I follow my noble friend Lady Amendment 80 in the name of the noble Baroness, Ludford in querying what is intended by Clause 7(3) Lady Hayter. I cannot speak for her, but my remarks and hope that the Minister will be able to draw on his will also encompass Amendment 80A in the name of limited stock of examples to provide me with one—indeed, my noble friend Lady Bowles who, as the Committee with something that fulfils this definition: will appreciate, is not in a fit state to speak to her “There is also a deficiency in retained EU law where the amendment, although it relates to Clause 7(3). Minister considers that there is … anything in retained EU law Clause 7(3) is rather strange. It was inserted by the which is of a similar kind to any deficiency which falls within Government on Report in the other place. I am trying subsection (2)”. to resist the word “sneaky”, but the Government gave In that case, why does it not fall within subsection (2)? with one hand and took with another. On 16 January, Can the Minister give me an example of something David Lidington said in the other place: which subsection (3)(a) would provide for but which “The Government remain of the view that the power in subsection (2) has not provided for? clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. Baroness Goldie (Con): My Lords, this has been a We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward short but interesting debate covering an important Government amendments 14 and 15, we have built on the amendment point. When my ministerial colleagues in the other tabled by my right hon. and learned Friend the Member for place moved the amendment that inserted into the Bill Beaconsfield (Mr Grieve)”.—[Official Report, Commons, 16/1/18; the subsection that Amendment 80 would remove, the col. 838.] Government’s reasoning was accepted by the other Amendment 14 was the one that led to the change in place without a Division. That is an onerous responsibility Clause 7(1) to put in “are” instead of “consist of but upon me, and I hope I can replicate that performance are not limited to”. So it was more specific on what and satisfy any concerns the noble Baroness has. ministerial powers could cover. As we heard at Second Reading, most of the House accept that the power in Clause 7(1) is essential but, 9.15 pm was as said then, the Government are looking forward The Government then tabled and inserted—and to using the expertise of this House to tighten any there does not seem to have been any debate at all in slack in the power and ensure that it is capable of the other place; it just went through on the nod—the neither too much nor too little. I have just addressed amendment which forms Clause 7(3). That says that the importance of retaining Clause 7(3)(b), but I repeat whatever deficiencies Ministers can remedy under the that the Government believe we can be a responsible rest of Clause 7, they can also regulate for deficiencies Government only by ensuring that we can provide for “of a similar kind”. Having removed the latitude for all the types of deficiency we discover. 1205 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1206
[BARONESS GOLDIE] been listening to Members of this House and the other Subsection (3)(a) provides that the meaning of place; the noble Baroness is not alone in having these “deficiencies” in Clause 7 includes those of a similar concerns. As such, we have made it a priority to find a kind to those set out in subsection (2). The noble solution that will satisfy both Parliament and the Baroness, Lady Ludford, and the noble Lord, Lord objectives of the Bill, and the Government are looking Beith, asked what this means and whether there are very closely at whether the key powers need to be any examples. This ensures that, for example, deficiencies drawn as widely as they are in this regard. We will relating to arrangements between public authorities in revisit this matter in more detail when we reach the the British Overseas Territories and the EU and its amendments in the name of the noble Lord, Lord member states, or between the UK and the EEA and Newby, but I hope this satisfies the noble Baroness on EFTA states are caught by the definition of a deficiency. this point for now and signals our commitment to They are not included in the list in subsection (2) but listen to the concerns of noble Lords. are very much of a similar kind to the types of The noble Baroness, in her amendment, expressed deficiencies listed, and it is important that the power is some concerns about the power to create criminal wide enough to allow the Government to correct offences. We will come back to this in more detail later them. This House accepted at Second Reading the in the debate on these clauses when we respond to the principle of resolving all the deficiencies in retained amendments in the names of the noble and learned EU law using the power in Clause 7, and we cannot do Lord, Lord Judge, and the noble Viscount, Lord this without both a type of sweeper—I think the legal Hailsham. If the noble Baroness wishes me to do so, I term is “ejusdem generis”—and a power to provide for will deal with that in more detail now, but perhaps that additional kinds of deficiency if they are later identified. is one of the areas she is happy for us to deal with later. I say to the noble Baroness, Lady Ludford, that that is The noble Baroness also expressed concern about why the clause is drafted the way that it is. not losing any EU functions. The Government are May I seek clarification from the noble Baroness, committed to ensuring continuity, but there are a Lady Hayter? I was not quite clear whether she wanted small number of functions it would be inappropriate to speak to Amendment 82 or whether she is forgoing for us to transfer to a UK public authority after exit. that for the moment for the purposes of this debate. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Baroness Hayter of Kentish Town: I am speaking to Authority for European Political Parties and European only a part of Amendment 82 and to Amendment 82A Political Foundations. The Clause 7(1) power makes —in other words, to the bits about not using Clause 7 provision to remove these functions, but only if, outside to remove any rights and standards or to repeal or the EU, they were somehow deficient, not simply because revoke the Equality Acts 2006 and 2010 or anysubordinate the Government disliked them as a matter of policy. legislation made under them. There is obviously much The noble Baroness raised the important matter of more in Amendment 82. There is stuff about criminal maintaining rights, standards and equalities protections, sanctions, raising taxes and setting up public bodies. I and I want to make it clear to noble Lords it is not the was making the point that I am not talking about intention of this Government to weaken these as a those now because we have separate groups on those result of our exit from the EU. It is for that very topics. The bit of Amendment 82 and Amendment 82A reason that it is necessary for Ministers to have the are about not using this power to make any changes ability to make adjustments to any relevant legislation under the Equality Acts. to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no Baroness Goldie: I am very grateful to the noble longer part of the EU. Baroness. I am looking at my speaking notes. It is a To reassure noble Lords of the Government’s little difficult to disentangle the points to which she commitment to ensuring transparency around any has just alluded. If the Committee will indulge me, amendments made to equalities legislation, we tabled I will perhaps try to cover the general points. an amendment in the other place that will require Ministers to make a statement in the Explanatory Baroness Hayter of Kentish Town: I emailed the Memoranda of all SIs made under this power and the Minister’s advisers very early this morning and spoke Clause 8 and 9 powers confirming that they have had to them earlier, so I would hope they had got the due regard to the need to eliminate discrimination, Minister’s notes in the right place. harassment, victimisation and any other conduct prohibited under the Equality Act 2010. Baroness Goldie: I thank the noble Baroness. I shall Would the noble Baroness like me to respond on soldier on as best I can with the material I have. By data protection? It is very helpful to get that reassuring way of general comment on Amendment 82, I hope I shake of the head. In conclusion, I thank the noble can reassure the Committee that I understand the Baroness for perhaps simplifying the matters immediately concerns many noble Lords have regarding the scope before us. I hope that the points I have raised in of the powers we are seeking to take in the Bill. I shall addressing her first amendment, and then those parts use this opportunity to allay, I hope, some of the of her Amendment 82 she is concerned about, are concerns as we look at the general premise of this enough to demonstrate the need for the power to have amendment in relation to the Clause 7(1) power. such scope and to be able to address all the deficiencies, The general concern is about the ability to create including those alike to the types listed in Clause 7(2). new public authorities, which was alluded to by the In these circumstances, I urge the noble Baroness to noble Baroness. Let me make it clear that we have withdraw her amendment. 1207 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1208
Baroness Ludford: Before the noble Baroness, Lady and capable of managing the difficult situations that may Hayter, responds, forgive me, but I am not sure I have arise, so that action can be taken to correct deficiencies entirely grasped this. Are the Government going to without harm being caused because the power does have another look at Clause 7(3)? In the other place, not exist to do that. the Government changed Clause 7(2) so that instead of saying that deficiencies “included” but were “not Lord Adonis: I took it as quite a significant move on limited to” those in a list, it now says “the deficiencies the Government’s part for the noble Baroness, Lady are” the list. However, Clause 7(3) adds, “Oh, but by Goldie, to say that she was open to discussions about the way, we can do things ‘similar’ to those in the list”. limiting the power to create new public bodies—and it The Minister has not explained why the Government is one that we welcome. That power, I know, has cannot lengthen the list to obviate the need for a caused concern in the House. The noble Baroness has provision that says Ministers can do “similar” things. shown herself to be so emollient that we very much That is why I say the Government are giving with one hope to hear a great deal more from her in the next six hand, in Clause 7(2), but then coming back with days of Committee. We will welcome her presence at Clause 7(3) and saying, “Oh well, we’ve limited ourselves whatever hour of the night she wishes to speak. there, but we’re going to expand our powers here”. Baroness Goldie: I am not one to spurn the comments The noble Baroness referred to these changes being of attractive gentlemen, particularly when they are passed without a Division, but a bloc of five or six honeyed compliments uttered by the noble Lord, Lord government amendments was voted on in one Division. Adonis. As I have said in previous debates, I may not I am not aware that in the other place they really always be able to acquiesce on points that he makes, distinguished between the amendments, because the but I understand that my noble friend the Minister is one tightening this up was lumped in with the one prepared to look again at the creation of new bodies. expanding it. I do not know whether I am being overly I cannot provide further detail at this stage, but it is an cynical here, but it seems to me that a fairly clever area where we have an open mind. government operation in the other place gave with one hand and took with another. I would like an assurance Baroness Hayter of Kentish Town: I thank the noble that the Government will have another look at this. Baroness for that. Obviously, we will come on to a grouping of amendments specifically about public 9.30 pm bodies—perhaps even tonight. I will deal firstly with Baroness Goldie: I would say to the noble Baroness the amendment to take out Clause 7(3) on page 5. I that our elected counterparts in the other place were was a little worried when the Minister said that it able to scrutinise this Bill in detail. The Government allowed some flexibility—which I take to mean wriggle were transparent in what they were doing when they room, or wanting to do something that is not quite brought forward the amendment that passed without allowed for.The noble Baroness, Lady Ludford, described a Division. Indeed, it was for Members of that place the problem of subsection (3) better than I could. Our to raise objection to the way in which the amendments concern is partly that we are again back to the implications were structured, and I understand that no such objections of where the Minister considers something—which is arose—and at the end of the day, it passed without a a very wide way of saying that where a Minister considers, Division. without any test, they can then define something as Let me deal with the substantive point raised by the “similar” to another deficiency. We may have to return noble Baroness. I was trying to explain that if we to this, because I do not think that it is robust enough. accept the principle, as the House appears to, that we Her particular example did not help her case, given need this corrective provision to let us deal with deficiencies that Clause 7(2)(d)(i) involves the EU, an EU entity, a on withdrawal, the Government are trying to ensure member state, or a public authority and a member that there is a flexibility. I made it clear in responding state. EFTA and NATO must be the only other two to the noble Baroness, Lady Hayter, that this is about bodies: could we just not write those in? To put in a having the powers to do what we need to do, but being whole clause just to allow for EFTA does not seem to conscious that we do not want these powers to enable me, with all that discretion, very appropriate. So I think Governments to do too much. It is equally important we may want to return to that. that they are empowered to do what they need to do Amendment 82, as amended by Amendment 82A, and that the powers do not restrict them so that they is very much about not using regulations to amend, are only able to do too little. repeal or revoke either the Equality Act 2006 or the Part of the difficulty with the complexity of what Equality Act 2010—or, indeed, to reduce any right confronts the statute book is that there is a degree of conferred on a person by retained EU law, if it were to unpredictability in the events with which we are dealing. be made less favourable. The Minister may have said We do not know quite what difficulties may arise. That that that was not the intention but, without the words is why there is a desire to build in the flexibility created in our amendment, clearly that would be possible. For by Clause 7(3). I did endeavour, in responding to the the moment, I hope that we can revert to the specifics, point raised by the noble Lord, Lord Beith, to give an such as public bodies, taxes and criminal offences and example of the kind of things that are not in Clause 7(2) put that to one side. However, we may need to return but would actually be covered by subsection (3). There later to subsection (3). I beg leave to withdraw the is no further comment I can make to the noble Baroness, amendment. other than to repeat my reassurance that the Government Amendment 80 withdrawn. are anxious to work with this House in trying to make sure that this clause is responsible, but also workmanlike Amendment 80A not moved. 1209 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1210
tease out what is the legislative deficiency, whether Amendment 81 there is more than one stage at which it can apply, and Moved by Baroness McIntosh of Pickering who actually decides. If it is the Executive, at what 81: Clause 7, page 5, line 46, leave out “, comes into force or stage can Parliament call them to account to scrutinise only applies” that? I hope that, in summing up on Amendment 81, the Minister can clarify, to create greater legal certainty, the legal basis for the functional restriction—where Baroness McIntosh of Pickering (Con): My Lords, I this is contained in a directive and therefore not retained am most grateful to speak to Amendment 81, which or transposed into domestic law—to be described as a for these purposes is joined with Amendments 95, 96, deficiency. 100, 227C and 244. I see that the noble Lord, Lord Bassam, is not in his place. I would be interested to Baroness Bowles of Berkhamsted: My Lords, I speak hear the content of the other amendments, but they only to Amendment 227C, just to say that this is a sort seem to make very positive noises that there should be of “double omnibus” amendment in that it covers the no increase in legislative burdens on individuals in whole Bill and also puts together, in its proposed new businesses; that we should not exceed what is essential paragraphs from (e) onwards, some ideas about how and not impose greater burdens; and that the Government to address in a generic way some of the concerns that should seek to make only technical changes and not to other noble Lords have expressed in what I call the change policy materially. “Thou shalt not”clauses. Clearly, we cannot go through I speak specifically to Amendment 81, which relates the Lobbies 20 times to deal with them all but, if this to deficiencies arising from withdrawal from the EU kind of formulation is adopted, we could achieve and considered in this group. The difficulty that I have something that was both votable and covered a lot of with the wording as it stands in Clause 7(4) is partly the common ground that there appears to be when because it contains a double negative and does not looking at other amendments, many of which will be seem to be plain English, saying, spoken to later. I will limit my comments to that for “retained EU law is not deficient merely because it does not now. contain any modification of EU law”— and so it goes on. So partly the amendment is to express Baroness Hayter of Kentish Town: In the absence of what is clearly meant, to seek greater clarity, but it also my noble friend Lord Bassam, I just want to encourage goes to the timing of the laws deemed to be deficient. the Minister—though I am sure it is already in his I think that it was my noble and learned friend notes—to comment on Amendment 244, which appears Lord Mackay of Clashfern who said earlier that it was in this group. It requires that: for Parliament to veto any statutory instrument put “The statement under sub-paragraph (2) must include a forward by government through the normal procedures certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit, of negative or affirmative resolution. Someone else in and that no policy decisions are being made”. an earlier debate said that it should be the right of I appreciate that the Minister and other Ministers Parliament to be able to scrutinise amendments that have said all the way along that this is not about fall under this clause—and, I would argue, particularly making policy, so it should be an easy certification on under Clause 7(4). So the question really to the Minister this occasion for a Minister to sign. I hope that that is to ask, if there is to be this scrutiny, at what stage might be accepted. this scrutiny would take place. My understanding is that the Minister is going to be able to act before Lord Callanan: My Lords, Amendment 81 in the Brexit to be able to prevent a deficiency from arising. name of the noble Baroness, Lady McIntosh of Pickering, My question is at what stage that would be and how concerns the core concept of this Bill, namely that it Parliament will have the opportunity to scrutinise preserves and makes functional the law at the moment that. Also, if failure of retained EU law is a type of of the UK’s exit from the EU. As the long and learned deficiency, and a failure means that the law does not debates in this House and the other place demonstrate, operate effectively, we have already established that this is of course something much simpler said than deficiency could cover a wider range of cases where it done. We can all agree that the law in the UK should does not function appropriately or sensibly. Guidance not be considered deficient simply because the EU as to who will actually decide what the deficiency is adopts a new law once the UK has left. The Bill and when it will apply will be extremely helpful. reflects that with the provision in Clause 7(4) and, I mentioned at the outset that subsection (4) is not therefore, this would not constitute a valid trigger for immediately clear. One turns to the Explanatory Notes the use of the power in Clause 7(1). and particularly paragraph 120, which says: It is also the case that the law is not deficient simply “Subsection (4) provides that the retained EU law in the UK is because EU law, as is often the case in some areas, not deficient just because the EU subsequently makes changes to contains provisions that are adopted before our withdrawal the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as but only come into force or apply after exit day. This it was immediately before exit day. The EU might go on to make reflects the approach taken in Clause 3, which provides changes to its law but those subsequent changes and the consequent for the conversion of direct EU legislation that is divergence between UK and EU law do not by themselves operative in the UK immediately before exit day. As automatically make the UK law deficient”. the Government set out when we debated Clause 3, we I am not sure that this entirely clarifies the situation, believe that it is right that we incorporate only that law nor does paragraph 116, relating to the earlier which is operative at the time of our exit. It is surely subsection (2). I want to probe the Minister to perhaps not taking back control to this Parliament and the 1211 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1212 devolved legislatures if we simultaneously preserve the Lady Taylor, the noble Lords, Lord Beith and Lord automaticity of new provisions of what was EU law Dunlop, and the noble and learned Lord, Lord Judge, becoming operative in our law, months or perhaps concern the use of the powers in the Bill to make years later. It would be unacceptable for EU law material policy changes, which have been referred to. I provisions to flow automatically into the UK many hope to reassure noble Lords when I say that this Bill years after we have left and would undermine the is a framework Bill with the sole purpose of providing clarity and certainty this Bill is designed to provide. maximum certainty for businesses and individuals as That is why Clause 3 preserves only the law as individuals we leave the EU, by ensuring that EU law continues in and businesses were bound by it immediately before exit our statute book effectively on exit day. day, and why that decision is reflected in Clause 7(4), I understand and sympathise with the amendments which makes it clear that the law is not deficient on not making material or other policy changes under simply because it does not contain planned future this Bill. The Government have been clear that this changes to EU law.In preserving EU law,the Government Bill is intended to provide continuity and certainty have drawn a line in the legal sand on exit day.Wherever and that it will be for future legislation, proposed by the line was drawn, the outcomes would, of course, Ministers and scrutinised in the normal way by Parliament please some and not others. I note that the controversial once we have left the EU, to consider where we wish to ports regulation, although already in force, will enter deviate from the law we are converting and correcting into application only days before exit day. Clause 7(4) under this Bill. That conversion and correction is not, merely reflects this line in the legal sand. however, devoid of policy choices. We have been open with Parliament since the White Paper when we say 9.45 pm “no major policy decisions” but we cannot rule out The power in Clause 7(1) is already broad and a some policy choices. The choice between two regulators restriction like this, which prevents the continued flow for a transferred function might seem fatuous to some of changes in EU law into the UK legal system after in this Chamber, but it is a policy consideration and our exit, is a feature and not a bug. If the UK wishes one that individuals might challenge if they felt that to make those changes, which may be excellent and they would be better placed in one world than another. well designed in many cases, this Parliament and the I regret to say that these restrictions—founded on devolved legislatures should make that choice, actively what seem like common-sense terms or which rest on and through the normal legislative process. new and untested definitions—are a magnet to the I move on to Amendment 85 in the name of the noble jewel in our economic crown that is the Scottish, Baroness, Lady Bowles of Berkhamsted. Clause 7(7) Northern Irish, English and Welsh legal sectors, which contains a list of restrictions on the exercise of the are all well represented in this House. The exchanges power in Clause 7(1). That power is exercisable only to on previous days between members of the Scottish prevent, remedy or mitigate deficiencies of the types Bar have been a credit to the Faculty of Advocates. defined in Clause 7(2), or those which are of a similar The Government do not want to invite litigation kind. The Government believe this is unequivocally regarding swathes of the crucial SIs under this Bill, the right thing to do. The Government do not take which would serve only to undermine legal certainty delegated powers lightly and, as the amendments we and, by doing so, hinder preparation for our exit. The proposed in the other place show,we want the admittedly Government intend that, other than the specific exceptions and necessarily broad powers in this Bill to be as listed in Clause 5 and Schedule 1, this Bill will ensure tailored as possible to their purpose. We have therefore that there will be no omissions of EU law currently included these restrictions on the power. They are operative in the UK. If a Minister believes it is appropriate modelled on those that apply to Section 2(2) of the to remove any retained EU law—I stress that there are ECA but go further, protecting the Human Rights Act examples of where this will be wise, such as in relation and, in very large part, the Northern Ireland Act. I to the translation functions of the European Parliament hope that this demonstrates the Government’s real —the House and its sifting committee will have the commitment to listening to this House and to placing opportunity to scrutinise that instrument and consider robust limits on the power. the excision in question. Furthermore, to ensure a clear distinction between Furthermore, the power in Clause 7 is restricted, the purposes and scrutiny of Clause 9 and Clause 7, both by its purpose—remedying deficiencies arising we also restricted secondary legislation under Clause 7 from withdrawal—and in what it may do. We have from being made to implement the withdrawal agreement. always said that significant policy changes will be Clearly, when a Minister is remedying a deficiency brought through by primary legislation, receiving proper using regulations made under Clause 7, the Minister parliamentary scrutiny. Noble Lords will have seen may be alive to the fact that some corrections will this in the form of the other EU exit Bills currently mean that the statutory ground is, as it were, withdrawal progressing through Parliament, such as the customs, agreement ready. However, provided that the Minister’s trade and sanctions Bills. I hope I have satisfied noble intention in making the regulations is simply to correct Lords’ concerns and I request them to not press their deficiencies, the restriction in Clause 7(7)(d) will not amendments. be relevant. However, we did not want it to be possible The noble Baroness, Lady Bowles of Berkhamsted, to circumvent the scrutiny provisions attached to Clause 9. also tabled Amendment 96. I am grateful to her for it. Amendment 95 in the name of the noble Baroness, I will not repeat my previous argument regarding the Lady Bowles of Berkhamsted, Amendment 244 in risks of injecting uncertainty via new and untested the name of the noble Lord, Lord Bassam, and definitions, but I think the point stands here also. Amendment 244A in the names of the noble Baroness, However, the amendment gives me the opportunity to 1213 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1214
[LORD CALLANAN] my noble friend for his reply, I am not sure that he make clear that it is not the Government’s intention to addressed the question of timings, and I am slightly increase the legislative burden on individuals and concerned about the scope for judicial reviews. I end businesses with our exit from the EU. In fact, we have with the comment that the wording I seek to delete gone to great lengths in the Bill to make provisions refers to the earlier Amendment 18, on which we had a that will ensure that, so far as is practicable, the law lengthier debate, and to which I will return on Report. continues to function once we have left the EU just as However, I beg leave to withdraw the amendment. it did immediately before exit. This ensures maximum certainty and continuity for businesses and individuals Amendment 81 withdrawn. as we leave the EU. I hope this reassures the noble Baroness that her amendment is not necessary, and I Amendment 82 not moved. ask her not to press her amendment. Amendment 100, tabled again by the noble Baroness, The Lord Speaker (Lord Fowler): Amendment 82A, Lady Bowles of Berkhamsted—she has been particularly which is an amendment to Amendment 82, therefore busy on this clause—prescribes that Clause 7 may not falls. be used to do more than what is essential. I have expanded at length already on why the Government Amendment 83 believe that a test of appropriate is the correct one for these powers. That argument is not accepted by many Moved by Lord Newby in this House, but I did my best. I hope that those 83: Clause 7, page 6, line 11, leave out paragraph (b) arguments, which I will not try the Committee’s patience by rehearsing again, have addressed the noble Baroness’s Lord Newby: My Lords, this amendment simply concerns on this matter. I hope that she will be content asserts a long-established principle of British practice not to press her amendment. and law, namely that public bodies are created via Let me go back to the questions posed earlier by my primary legislation. There are good reasons for this noble friend Lady McIntosh. On who will determine principle. Public bodies perform important functions. whether the law is deficient, the answer is Ministers, as They cost money to establish and run, and they can constrained by courts and Parliament, in line with often themselves levy fees and charges or bring normal responsibilities. The SIs will be made largely enforcement actions in the courts. They typically have before exit, to come into force on exit day—it may be quite a big impact on the people and organisations redundant to say this, but they will be made largely that they regulate. They are, in short, important. They between Royal Assent and exit day. I hope that has should not be capable of being established via secondary addressed her concerns and I hope noble Lords will legislation for the simple reason that such legislation feel able not to press their amendments. does not allow their purposes, scope and operating practices to be subject to adequate debate. Baroness Hayter of Kentish Town: Although In the Commons, debate on any statutory instrument Amendment 244, in the name of my noble friend Lord is limited to 90 minutes. While we can take slightly Bassam, asks for, longer in your Lordships’ House, the nature of statutory “a certification that the regulation does no more than make instruments, as the Minister knows, is that they can technical changes … and that no policy decisions are being made”, only be approved unamended or rejected outright, except in the most extreme circumstances. If we attempt, I take the point that policy choices may be being made. as we very rarely do, to reject them outright, we are Although it is not in this group, Amendment 244A accused by the Government of exceeding our powers, says that there would be a certificate saying that either and the noble Lord, Lord Strathclyde, is wheeled out the change was just technical or a policy choice has to threaten us with dire consequences. been made. That amendment may not be in this group, but I am interested whether the Minister is closing his I had rather hoped that the noble Lord, Lord mind to the idea that there should be a certificate from O’Donnell, who had planned to be in his place, was in the relevant Minister. That is what this amendment his place, because he wrote the Cabinet Office guidance aims to do. which clearly explains to Ministers that they should use primary legislation when establishing public bodies. Lord Callanan: No. As I have made clear throughout However, in order to check whether I was right in the Bill, our minds are not closed on many of these thinking that it was normal practice to establish public matters. I think I gave the noble Baroness an example. bodies by primary legislation, I had a look at the It is a difficult distinction to draw about what is public bodies that the Government proposed to abolish making policy or what is a policy choice. As I said, the in the Public Bodies Act. These were a very wide choice between two regulators can be said to be a range, from the Administrative Justice and Tribunals policy choice, but it is certainly not our intention to Council to the Victims’ Advisory Panel. use any of the power in the Bill to massively expand I asked the Library to discover by what power this on different levels of policy. It is our intention to random cross-section of public bodies had been impose a snapshot on exit day and ensure that the law established. Of the 34 listed in Schedule 1 to the Bill is compliant and tidy, as we have said. they looked at 27. They were without exception established by primary legislation, and while it is unsurprising in Baroness McIntosh of Pickering: My Lords, I am the case of larger entities such as the Competition most grateful to the Minister and to all who have Service—established by the Enterprise Act 2002—it contributed to this little group. While I am grateful to was also the case with relatively insignificant ones 1215 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1216 such as the Home Grown Timber Advisory Committee, question of the Government, which was: will they established by the Forestry Act 1967, or the Railway publish strategies explaining how these various bodies Heritage Committee, established by the Railway Heritage are to be replicated, or not replicated, and what we Act 1996. So what the Government are proposing in should do to fill any gaps, so that we know what is the Bill is without precedent. Certainly, any body happening? The answer given by the noble Lord, Lord established to fill a gap created by our exit from the Callanan, consisted of a single sentence. He said that it, EU would be more important than some of those I “would be neither helpful to Parliament, nor in the national have already mentioned. interest”.—[Official Report, 21/2/18; col. 252.] Is such a departure justified? I do not, as a matter I suggest to the noble Lord that both those statements of principle, believe that it is, but if it were to be were false. It will be in the interest of Parliament to justified, the only grounds I could imagine the Government know how the Government intend to fill gaps in plausibly advancing were that there were simply far respect of public bodies caused by our leaving the EU. too many bodies to be established by primary legislation For the noble Lord to assume that he knows what is in by exit day. At first sight this argument looks as the interest of Parliament is rather extraordinary. What though it might have some merit. There are, excluding he really means is that it is not in the interest of the the EU’s core institutions such as the Commission Government to say what they will do to fill the gaps, and the Parliament, some 54 other EU bodies described because they clearly do not know. They do not know by the EU as, where they will get to in the negotiations and I suspect “specialised agencies and decentralised bodies”. that, regarding some of these bodies, they do not know, full stop. I invite the Minister in his reply this Virtually all of them are set out in Amendment 263, in evening to be a bit more gracious towards the noble the name of the noble Lord, Lord Whitty. But the Lord, Lord Whitty, and his suggestion, and to commit truth is that we will not need to replicate anything like the Government to come forward with some suggestions that number. as to how they are going to fill the gaps that they are Clearly, we will not need to replicate the functions about to create. of the European Police College, or the Translation On the amendment itself, it is very straightforward. Centre for the Bodies of the European Union, or the There is a well-established principle in British practice European Institute for Gender Equality. We will not and law that public bodies are established by primary need to create new bodies in the area of financial legislation. The Government are seeking to tear up that regulation. In some cases, the question of whether we convention for no good reason and they should desist. need to create new bodies or not is extremely unclear. The Prime Minister, in her speech last week, suggested Lord Adonis: My Lords, the difficulty with having we would be seeking associate membership of three been in this House for a number of years is that all bodies, which we are already members of by virtue of these debates come round and round. I wish that the our European membership—namely, the European noble Lord, Lord Newby, was right in saying that this Medicines Agency, the European Chemicals Agency is the first time we have been faced with sweeping and the European Aviation Safety Agency. It is clear powers for Governments to reform public bodies by that, if we stayed in those bodies, the need to replicate secondary legislation. He may remember that one of them would be very small, if needed at all. However, the first acts of the coalition Government in 2010 the negotiating mandate published today by the European was to introduce the Public Bodies Bill. I vividly Council states that: remember the debates on that Bill because it gave “The European Council further reiterates that the Union will sweeping powers to the Government to abolish public preserve its autonomy as regards its decision making and excludes bodies by statutory instrument. Because it is the job participation of the United Kingdom as a third country to of the Opposition to oppose draconian attempts by EU institutions, agencies or bodies”. Governments to seize Henry VIII powers, those of us It seems that, since the point at which I first drafted on this side of the House made exactly the same my speech for this evening, we may need to create speech as the noble Lord, who was then sitting on the three more bodies than I had originally envisaged. Bench opposite, has made, saying why that should not None the less, the total number we are talking about is happen. substantially smaller than 54 and, almost certainly, is There was then one of those classic showdowns less than 10. Indeed the Government have already between the House of Lords and the House of Commons. admitted that some bodies which will need to be created, From memory, it centred on whether the YouthJustice will be created by primary legislation. We heard earlier Board, which at that time was threatened with abolition, today, when we were talking about environmental should be capable of being abolished and whether it protections, that there will be an environmental protection should be done by primary or secondary legislation. Bill with a new environmental body created within it We all thought that was a very bad idea because it was which replicates some of the functions of European doing such a brilliant job of dealing with the problem environmental agencies. of young offender institutions. I believe we saved the So, despite the lack of clarity, we are talking about Youth Justice Board, and all the brilliant developments a relatively small number of bodies for which primary in penal policy that we have seen in this country in the legislation should be needed—and there is almost last eight years, which have been such a phenomenal certainly time for that legislation. Before leaving the success, are no doubt due to its survival at the insistence subject, I would like to refer back to the debate we had of the House of Lords in 2010. earlier, when we discussed Euratom, and also discussed The proposal put forward by the noble Lord is all Amendment 263 in the name of the noble Lord, Lord immensely worthy and I obviously support everything Whitty. That debate asked an extremely important he has said. The power grab by the Government which 1217 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1218
[LORD ADONIS] rules and procedures of those agencies, we would no the noble Lord, Lord Callanan, who I see is now back longer take part in their activities. We have an issue in his place, is trying to undertake is utterly reprehensible. here. I thought I heard the noble Baroness say earlier that I was a bit diffident about the coalition’s Public the Government are prepared to move on this. I hope Bodies Bill—I did not want to embarrass the noble that the noble Lord and the noble Baroness have been Lord, Lord Newby, who has been so kind to me—but, speaking so that we can bank this great act of liberalism as my noble friend said, the achievement of the House on the part of the noble Lord. It will be the first one of Lords was to knock out an enormous schedule. The that we have heard since he assumed his current place Chief Whip, who was the Minister in charge of the Bill but we would welcome it greatly. at that time—he is now in his place—looks less fraught I simply note that in the great scheme of the United with this Bill than he did when he was dealing with the Kingdom leaving the European Union, this is a small Public Bodies Bill. In the end he wisely convinced his issue. It is a classic House of Lords issue where we will colleagues that he had to drop the huge schedule that probably achieve a great victory. It will make no gave carte blanche powers to the Government to abolish difference whatever in the great scheme of things but I or tweak the responsibilities of a host of public bodies. suppose that is why we are here. That Bill was to abolish bodies or alter their remit; this Bill is to set up entirely new bodies. Unless we do that Lord Hannay of Chiswick (CB): My Lords, I rise to knowing what the overall approach is, this House take the place of my noble friend Lord O’Donnell, cannot give the Government that degree of power. who unfortunately cannot be here, to make it clear Mention has been made of the new environmental that there are quite a few others on these Benches who body. Strictly speaking, under this clause as it currently share his views. I would not be so unwise as to talk stands, the Government would be able to establish, about the collectivity of Cross-Benchers—I have been under secondary legislation, the kind of body that the around long enough to know that that does not exist—but noble Lord, Lord Krebs, who is no longer in his place, there are quite a few, and for the same reason. I hope was arguing for earlier—a body so powerful it could that when he comes to reply to this debate, the Minister sanction other public bodies, including the Government, will not again trot out the “housemaid’s baby”argument if it was able to reproduce the powers that presently that he has been using all evening—that it is a very rest with the European Commission. That is an enormous small one and nothing terrible is going to happen, et power, which this House would not allow the Executive cetera. We are talking here about some quite significant arm of government on its own without primary legislation decisions which, as the noble Lord, Lord Newby, said, conducted through the two Houses. have invariably, and quite correctly, in the past been I recognise that there is a timescale problem for the taken by primary legislation. Government, but might it be possible to set up some I know—this is very welcome—that in her Mansion of these bodies in shadow form? If there are 10 bodies, House speech the Prime Minister rather reduced the as the noble Lord suggests, there may be a need at number of public bodies that might have to be created least to stop the process before the final passage of this following our leaving. She has recognised that we Bill. To have permanent public bodies to regulate would do much better to stay in a number of the large swathes of our public life, industry and personal public bodies that already exist in the European Union, behaviour—even if there are only a dozen of them—would and we will see whether that bears fruit in the negotiations. require primary legislation. This House needs to assert That might reduce the list but it does not remove the that it does and the Government need to accept that. problem. Therefore, this amendment deserves wide support from all round the Committee. It would be an Lord Beith: My Lords, I support my noble friend extremely unwelcome and dangerous precedent if we Lord Newby on one specific reason why it is primary started delegating the powers to set up these public legislation that we use, and should use, for the creation bodies to a government Minister with only a resolution of public bodies, even in these circumstances. He available and the nuclear option to stop it. I support referred to the somewhat limited procedures in both the amendment. Houses, but particularly in the Commons, for dealing with statutory instruments, but one abiding characteristic Lord Whitty (Lab): My Lords, as the noble Lord, of them is that they do not admit of amendment. Lord Newby,was kind enough to refer to my amendment, When a public body is being created, even in the short which was probably misgrouped at an earlier stage timescale we are talking about here, its remit, terms of when we were discussing Euratom, I wish to underline reference, composition and the powers it can exercise the points that he makes. At that time I asked the are incapable of amendment. The idea that the Minister to set out for Parliament the approach to the Government would produce so perfect a form that it EU agencies that the Government were going to take would not benefit from amendment, or even discussion in the negotiations. Frankly, the noble Lord was far of amendment, is so fanciful that I am sure the Minister too dismissive of that approach, and it would do him will not advance it. Surely primary legislation capable some good now if he were to say that at some point of amendment, even if addressed with greater speed during the course of the Bill the Government will set than normal because of the circumstances, is the only out the line that they will take. After all, as has been defensible way of doing something as extensive as said, the Prime Minister has set out her line in relation creating a public body. to some of those agencies.Unfortunately,within 48 hours, the EU has effectively said, “Sorry, that is not on”—not Baroness Altmann (Con): My Lords, I have added only for the post-transition period but for the transition my name to these amendments. I believe that public period itself. While we were continuing to follow the bodies should be established by primary legislation. 1219 European Union (Withdrawal) Bill[7 MARCH 2018] European Union (Withdrawal) Bill 1220
Parliament must have the opportunity to properly that—and indeed their degree of independence from scrutinise and access the expenditure associated with the Government. It is a crucial part of the function of trying to replicate bodies to which we already belong. many public bodies. The Bill, and in particular Clause 7, contains elements Such limitations on the powers of those public that are frightening to those of us who believe in bodies, and the requirements for how they operate, are parliamentary democracy. Handing such powers to written in primary legislation. They can be discussed the Executive is a gross dereliction of duty. I encourage carefully, they can be amended—as we did before with my noble friend to urgently ask his department to others, as the noble Lord, Lord Beith, said—they can reconsider the Government’s current intention to leave be debated in this Chamber or in the other place, and so many excellent EU agencies and try to recreate our they could have pre-legislative scrutiny. For example, own versions. setting up a new public ombudsman—as the Member in the other place Mr Jenkins has been recommending— Baroness Whitaker: My Lords, it must be inherently could come by a Bill and could be amended after undemocratic for bodies that have significant obligations, consultation with the relevant interested parties. That for instance under the Equality Act or the Human is the way that we should set up public bodies. Instead, Rights Act, not to be set up with the full parliamentary this Bill says to a Minister, “Well, you decide. You scrutiny of primary legislation, so I support these decide how to set it up; you decide how its board will amendments. be established; you decide who to appoint it—probably you could decide to appoint your friends to it”—and 10.15 pm Parliament will nod it through. That is not good enough and this power must be dispensed with. Baroness Hayter of Kentish Town: My Lords, I think the good news is that we heard a hint earlier that this might be one of the areas where we are going to hear a Lord Callanan: My Lords, I welcome the opportunity bit of movement tonight. If the Chief Whip will allow to respond to the debate, if only to confound all the us to go home after this group, we will be sent home in prejudices of the noble Lord, Lord Adonis, that I am a very happy mood. some inflexible hardliner who never gives him anything My name is also on these two amendments and I he might want and that only my noble friend Lady will not make the case again, because the noble Lord, Goldie can—I was going to say “satisfy him”, but Lord Newby, made the clearest of cases against the perhaps I should not use that word. He could not put use of secondary powers to create new quangos, with a cigarette paper between us, by the way. She might others adding similar reasons for why this is not just a do so with more charm than me, but we are saying power too far but is in breach of government guidelines. essentially the same thing. I will add only two points. First—this is a slight I understand that a number of noble Lords are gripe, I am afraid—in answer to my Written Question concerned about the scope of this power and I reassure as to whether there were other examples of NGOs your Lordships that the Government are listening to established by secondary legislation, the noble Lord, those concerns. When Clause 7 was drafted, we thought Lord Youngof Cookham, said that it was not possible it would be only sensible for the sake of contingency to answer other than “at disproportionate cost”. But to include in its scope the ability to establish new the Government must have known why I was asking public authorities to ensure, as many amendments in this Question—they have a brain—and I would have the other place sought to ensure, against losing any thought that if there were some public bodies set up by important functions as they are transferred over from secondary legislation they could have found a few the EU, as no such public authority may currently examples. This was some time ago. Unfortunately it is exist in the UK. Certainty and continuity are, after all, an undated letter—like many I get from the Government the watchwords of the Bill. —but it is HL1651, so I think it was probably last year We have been clear that our preference will always that I asked it. be, where possible, to transfer any functions returning My second point—and in a sense it is really the from the EU to existing bodies in the UK, but it has point touched on by the noble Lord, Lord Beith—arises proven necessary to legislate in parallel with negotiations from my experience both as a consumer representative because of the strict Article 50 timeline. Therefore, we and as a former member of various regulatory bodies do not know at this stage exactly which functions are set up always by statute. It is simply to say that the returning. Wemust make this legislation without prejudice very way we establish those bodies—whether it is the to those negotiations, where, as the Prime Minister Charity Commission, the Competition Commission, said in her Mansion House speech last week, we are the Legal Services Board or the National Consumer looking to continue a productive relationship with Council of which my noble friend Lord Whitty was various EU bodies as part of our deep and special such an eminent chair until the Public Bodies Act partnership. abolished it—affects how they do their job. The founding The noble Lord, Lord Whitty, asked about our statute will spell out their task and set out the “have strategy towards the agencies. Where there is a regards to” that influence how they set about their demonstrable national interest in pursuing a continued work. It will also define who sits on their boards, relationship with any EU body or agency,the Government how they are appointed, to whom they report and will consider carefully whether we should do so. However, whether, for example, they have a duty to heed as he knows, it is ultimately a matter for negotiations. consumers in the relevant industry, the regulated We remain committed to keep Parliament as fully industry itself, the employees, the wider social informed as possible without prejudice to our negotiating considerations such as the environment or things like position. 1221 European Union (Withdrawal) Bill[LORDS] European Union (Withdrawal) Bill 1222
[LORD CALLANAN] Lord Newby: My Lords, I am most grateful to However, we already know of one function that we everybody who has spoken in this debate and to the expect to return to the UK and which it is agreed does Minister for his reply. On several occasions this evening not sit happily with any existing public body: our he has managed to combine Dr Jekyll and Mr Hyde in environmental protections. This prompted the Secretary the same speech and he has repeated that performance of State for Environment, Food and Rural Affairs to here. I am pleased, none the less, that the Government announce our intention to consult on a new,independent are considering how to deal with this issue. The only and statutory body to advise and challenge the thing that slightly concerns me, both in this case and Government and potentially other public bodies on others where we have had the same response from the the environment—we discussed this extensively earlier— Government Front Bench, is that that clock is ticking stepping in when needed to hold these bodies to quite quickly towards Report. The fact that the account and enforce standards. As such, we need to Government are thinking about it is better than their retain the power until we can be confident of delivering not thinking about it, but we will soon come to a point all necessary legislative changes without it. at which their thoughts need to be crystallised in It is for this reason that I am sorry to say that we something that we can look at. will not be accepting Amendments 83 and 94 in the The noble Lord, Lord Whitty, made an extremely name of the noble Lord, Lord Newby, which seek to sensible suggestion for how we can deal with some of remove this ability from the scope of the power. The these issues in the short term, with the establishment Government have a responsibility to safeguard against of shadow bodies, and I hope that is one of the the potential disruption and confusion caused to options the Government will consider as they move businesses and individuals as we exit the EU, and we forward. We shall return to this, in one form or another, believe that the ability to create new public authorities on Report, but for this evening I beg leave to withdraw plays a big part in ensuring this.However,the Government the amendment. also recognise their responsibility to Parliament in listening to Members’ concerns regarding the legislation it seeks to pass. Therefore, I can assure noble Lords Amendment 83 withdrawn. that the Government are working hard on finding a resolution to this matter that will satisfy the concerns of noble Lords—maybe even the noble Lord, Lord House resumed. Adonis—and we will revisit it on Report. In the meantime, with those assurances, I hope the noble Lord will be able to withdraw the amendment. House adjourned at 10.25 pm.