European Union (Withdrawal) Bill - Committee (4th Day)

– in the House of Lords at 3:06 pm on 5th March 2018.

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Relevant documents: 12th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee

Amendment 29

Moved by Baroness Sherlock

29: After Clause 4, insert the following new Clause—“Maintenance of rights in the area of family law(1) Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law.(2) The report provided for under subsection (1) must include—(a) the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law;(b) the nature and duration of these reciprocal arrangements, if such arrangements have been successfully negotiated; and(c) a declaration from the Minister of the Crown outlining whether, in their view, the rights of individuals in the area of family law have been weakened.(3) The Minister of the Crown must lay the report before both Houses of Parliament.”

Photo of Baroness Sherlock Baroness Sherlock Shadow Spokesperson (Work and Pensions), Opposition Senior Whip (Lords)

My Lords, in moving Amendment 29 I shall speak also to Amendments 53, 120 and 336, all tabled in my name. In doing so, I should like to record my appreciation of the work done by the Brexit and Family Law group, especially the members of the Family Law Bar Association, Resolution and the International Academy of Family Lawyers who have worked so hard to produce expert briefing for the House.

At Second Reading I set out the problems facing international family law post Brexit. I have tabled these probing amendments specifically to give the Minister the opportunity to reassure the Committee that he understands the severity of the problems and tell us how the Government propose to take forward family law provisions within the UK after Brexit. I will spell out—as succinctly as I can, given the complexity of this issue—what the problems are, explain the only two ways I can think of in which the Government could deal with this, and invite the Minister to tell us in which direction they plan to take the country.

Amendment 336 simply clarifies what counts as family law for the purposes of this debate. It focuses on two main instruments, the first of which is Council Regulation No. 2201/2003, known as “Brussels II revised”, or “Brussels IIa” in the jargon. It deals with jurisdiction for divorce and issues about parental responsibility for children. As well as private law disputes about child arrangements within a family, it covers child abduction cases and public law disputes where local authorities seek child protection measures. The second is Council Regulation No. 4/2009, known as the maintenance regulation, which deals with child maintenance obligations and maintenance for the adults in a family. There are plenty of other important EU instruments that affect families, but because of time I will not go through them all.

Let me explain how the EU family law provisions named in Amendment 336 work. Unlike in other areas of law, each EU state makes and keeps its own family law, so that countries decide the terms of their own substantive family law. These EU family law provisions are really about procedure and they do three things, the first of which concerns jurisdiction. They provide a mechanism for deciding which country’s courts take precedence if cases are issued in two countries at the same time, thereby avoiding expensive parallel proceedings that could lead to contradictory decisions. The certainty and predictability make it easier for families to understand what will happen.

Number two is enforcement; that is, a court order for maintenance or child contact—or an injunction against harassment issued by an English court—can be enforced in other EU states, and vice versa. Thirdly, there is co-operation between EU member states, for example the sharing of information to protect children, help locate people to make them pay maintenance or start proceedings across borders.

The Bill copies those EU provisions into UK domestic law, but the whole point of the regulations is that they will work on a reciprocal basis. When we leave the EU we will lose that reciprocal aspect. The Bill cannot solve that problem; in fact, it creates an additional one. By importing EU provisions, we do not change our substantive law but we do retain our obligations toward the judgments of other EU member states, without any guarantee of reciprocity. So we have a one-way street where the UK is obliged to apply current provisions but the EU 27 will not have to do the same for us. A Polish order to return an abducted child or enforce a contact order would be automatically enforceable in England, but the reverse would not be true. English orders might be enforceable using other international conventions, but those have different provisions and there would be a mismatch in the way decisions are treated. A British woman could be forced to stop her divorce case in the English courts if her husband had filed first in Germany, but the reverse would not be true. The couple could end up with cases running simultaneously in Birmingham and Berlin at vast expense and reaching contradictory decisions on maintenance with no certainty of enforcement. There are no other international conventions applicable across the EU to help in divorce cases. Lawyers will not know what to advise on how orders will be treated, and many families will not have the money to fight it out in court. Those who cannot afford advice will be lost.

I am afraid that, to complicate things further, these regulations are about to change. The EU is in the middle of renegotiating them: it is about to negotiate an update to Brussels IIa, creating a “Brussels IIa recast”, in the jargon. In October 2016, the UK decided to actively get involved by opting into the renegotiation of Brussels IIa, which is expected to conclude some time next year. The reforms aim, broadly, to improve return proceedings after a child is abducted by limiting the number of appeals and concentrating on certain courts—to enhance children’s rights and give children the chance to be heard in court—as well as making various other improvements, such as better co-ordination with the 1996 Hague Convention on Protection of Children. Those improvements are welcome, but they help us only if the recast provisions are complete before Brexit. If they are not—and they probably will not be—we will end up importing into our law provisions that will almost immediately be different from those from the EU, making it even harder to negotiate getting back any reciprocity.

A final challenge is that the UK contains a number of different jurisdictions—England and Wales, Scotland and Northern Ireland—all of which have different family law systems. We might come back to that later in the Bill. So that is the landscape at which Amendment 29 is directed. It invites Ministers to publish a report that outlines the way in which the rights afforded by EU family law will continue to operate in domestic law, what steps Ministers have taken to negotiate reciprocal arrangements between the UK and the EU 27, and whether the rights of individuals have been weakened as a consequence. I hope that Ministers will accept the amendment, but for the report to be meaningful we need the Minister to answer a key question today: what is the Government’s vision for family law post Brexit? I will make it easier by making it a multiple-choice question, because I think there are only two choices. Option one is that we seek to retain the status quo as far as possible, permanently. The 2017 report of our Justice Sub-Committee of the European Union Committee—called Brexit: Justice for Families, Individuals and Businesses?—said that the three main EU regulations were,

“crucial to judicial cooperation in civil matters and reflect the UK’s influence and British legal culture”.

The report urges the Government to stay as close as possible to those rules when negotiating their post-Brexit position.

So the questions begin: is the Government’s goal to stick with the provisions of the EU family law regulations? If so, we will clearly need some sort of reciprocal arrangement with the EU, covering the EU 27, to make those provisions effective. Question two: are there negotiations with the EU, ongoing or planned, to discuss that issue—and, given how tight time is, when might those be expected to conclude? Question three: if the Brussels IIa recast is adopted by the EU after Brexit, do the Government intend to amend the provisions brought into our law to reflect the improvements brought about through the recast measure?

Finally on option one, full reciprocity would almost certainly mean being bound by the European court and its decisions, because it is very unlikely that the EU 27 will operate these EU family law provisions on a reciprocal basis unless the court is the overall arbiter of any issues about their interpretation. However, given that the court is dealing here with only procedural questions and not substantive law, are the Government content to live with that? That is the question to which my probing Amendment 53 is directed.

That is option one—to try to stick with what we have. Option two is a bespoke arrangement. We could try to make our own deal with the EU, with a brand-new framework for family law co-operation. That would be slow and difficult and we would not be able to do it by 2019—but is that the Government’s preferred option, at least after transition? If so, could the Minister tell us what the parameters of that deal would be? Will they seek a new arrangement that stays close to the EU provisions, or a whole new deal? Since reciprocity will still be needed, what form of judicial oversight will there be and what will happen in the interim while the deal is being negotiated? Will we seek to retain the current EU provisions with the necessary European court oversight, even if just temporarily? What do the Government propose to do about the asymmetry in obligations I mentioned between us relying on the other international conventions and the EU 27? If we do not retain the current EU provisions, how will Ministers deal with the gaps this would leave after Brexit in which there are no equivalent international conventions? There are no domestic violence protection measures in place and there are no practical alternatives on divorce.

On maintenance and children cases, Ministers have signalled that we will continue to participate in the Hague conventions that already apply to us and that we may seek to continue to participate in the 2007 Lugano convention on maintenance. But Hague and Lugano do not offer the same level of protection and they contain narrower or less effective provisions than we have now. There are also questions of applicability, and it is to those that my Amendment 120 is directed.

Photo of Lord Grocott Lord Grocott Labour 3:15 pm, 5th March 2018

Just before my noble friend leaves Amendment 53, I will say that I have followed her almost entirely and agreed with her, but I do not understand in practice what the amendment means by requiring UK courts and tribunals to “have regard to” relevant decisions of the European court relating to cases referred to it by the domestic courts of EU member states. In practical terms to a layman, what does “have regard to” mean? Is it standard legal terminology?

Photo of Baroness Sherlock Baroness Sherlock Shadow Spokesperson (Work and Pensions), Opposition Senior Whip (Lords)

It is standard legal terminology, and I thank my noble friend for his question. It would mean having regard to the human rights model. I said at the start that these were probing amendments. One of the reasons why I tabled it in that form is that I knew that if I tried to do anything more specific I would end up getting a classic government answer about the European court. To be honest, I am not really interested in having a fight about that. All I want to do is to understand what the Government’s approach to this is and how they will deal with whatever kind of judicial oversight is needed to enable reciprocity. So I will be open to whatever they come back and say; I will look at it in Hansard and judge it afterwards, rather than getting into it now. This is Committee and that is what I was trying to do.

My final questions are: will the Minister assure us that the 1996 Hague child protection convention will have continued application? Secondly, the UK will have to ratify the 2007 Hague convention on maintenance independently once we have left the EU. Because we have to give three months’ notice on that, if we do not take action before Brexit there will be a minimum three-month gap in its applicability after we leave. So what steps are the Government taking to ensure that it continues to apply seamlessly?

I know that I have asked an awful lot of questions, but at heart there is a core question: do Ministers want to try to stay with the current reciprocal provisions, which are tried and tested? If the answer is yes, are they taking the necessary steps? If it is no, where are we heading and what are we going to do in the interim until we get there? These are important provisions for the effective conduct of cross-border family cases. There are a lot of international divorces each year. These issues cannot be ignored. Children will suffer if they are not returned promptly after being abducted, or if their main carers do not get the maintenance they are entitled to. Families can lose time and money fighting court cases in two countries, with no certainty as to what happens at the end. We need to know where we are heading. To that end, I look forward to the Minister’s reply.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.

The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.

There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.

Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.

The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.

The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,

“the worst of all outcomes”,

as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.

A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?

Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.

The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.

European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.

This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

As a family judge, I regularly tried international family cases, so I entirely agree with the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, and very much support Amendment 29. I am dismayed, I have to say, by the inadequacy of the current wording of the Bill, which does not refer specifically to family law and does not deal with the main issue of reciprocity and the importance of the European court in Luxembourg. I will reiterate two figures because they are important for noble Lords to know. One is that there are 140,000 EU divorces between the UK and other member states. That is not a small number. There are 1,800 EU child abduction cases—an area of the law that I spent a disproportionate amount of my time trying under the Hague convention before the EU law came in and enormously improved the Hague convention.

Both noble Lords referred to the three main procedural areas: jurisdiction, recognition and enforcement, and co-operation. We do not want parallel hearings. We do not want someone starting a divorce in London and in Warsaw and carrying it through to the end, where we may find that we have to obey what Warsaw says and Warsaw has absolutely no need to take the slightest notice of us. This is a truly worrying thing. When it comes to the recognition and enforcement of orders, it is incredibly important that a domestic violence order in this country will be applied in another country, where the offender is living, and if the victim goes to, say, Slovenia and the offender misbehaves, the Slovenian courts will apply our English domestic violence injunction. That will no longer be the case under the Bill.

The other important thing is co-operation. Again, I come back to child abduction, which is perhaps the saddest of all the areas of international family law, when the child is removed precipitately from one parent and taken somewhere else. Currently, if there is an English order the EU country where the person is will try to find him—very often him but sometimes her—and then apply the English court order. That is such a bonus that we have and it is more efficient because it is stricter than the Hague convention of 1980.

The Bill applies to replicating existing law but, as the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, pointed out, it does nothing about the changes that are going through at the moment. There is really no point in our replicating laws that are about to be changed because they will not then apply in the rest of Europe.

That is the first problem but the second and infinitely more important problem is reciprocity. There is no point us applying European law if the various countries of Europe do not have to apply ours. That really will be such a disadvantage for British citizens. This matter that noble Lords are currently looking at is nothing to do with the rights of EU citizens. It is exclusively, from our point of view, the opportunity for fairness and justice for the British citizens involved in international family affairs, so we urgently need certainty for family cases.

We also have to bear in mind that, unlike most of the law discussed here, where I can understand the issue of sovereignty—I do not actually agree with it but I can understand people’s feelings about sovereignty on substantive law—what we are talking about is not substantive, it is procedural. I would have thought it would be much easier to accept the European court decisions on procedure than on substantive law. But we really must have the European court if we are to have reciprocity with the other 27 countries—entirely for the benefit of British citizens, although clearly it would also benefit the citizens of the other 27 countries.

Would the Minister be prepared to see me along with a number of others, particularly the Family Law Bar Association, the international family law association and Resolution, the organisation for solicitors in family law, so that we could go through with him how we ought to take the Bill forward? Currently, the way civil law is being looked at just for replicating it is utterly inadequate. It would be profoundly unjust to British people to let it stay like that.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat 3:30 pm, 5th March 2018

My Lords, I support Amendment 29 and will speak briefly to Amendment 336, to which my name is attached. I remind the House of my declared interest as chair of the Children and Family Court Advisory and Support Service. I wish to dwell on that experience in my remarks today, by thinking in this debate about the impact on the child and whether or not they feel that their voice is heard.

It is for this reason that I feel it is vital that the Government take all possible steps to achieve an outcome which retains full reciprocal arrangements between the UK and member states in the field of family law. It is so vital that families needing to go to court must know that whatever court they end up in, and in whatever country, its decision will be respected by other courts. We have heard a lot from distinguished lawyers about the current reciprocal arrangements, which have been built up and evolved over decades. They have provided real benefits to families across the UK. These harmonised rules across the EU for establishing jurisdictions to hear cases, to recognise and enforce each other’s orders, and to co-operate across borders have made a real difference to families caught up in these difficult situations.

Replicating provisions in our own domestic law without full reciprocity would leave our citizens in a position of real vulnerability and confusion. It would lead to very unfair outcomes for British citizens, a point which has already been made. As the noble Baroness, Lady Sherlock, said so persuasively, the EU instruments which affect UK family law deal primarily with procedural, not substantive, family law. Sovereignty is not the issue here and I really hope that in this debate, as we look at what happens to family law in the context of Brexit, we will not get caught up on the high altar of sovereignty. This is about what happens to very vulnerable and distressed children and families.

I turn briefly to Amendment 336, to which my name is attached. The reason I wanted to attach my name is that the first regulation cited in this amendment—I will not go into the technical detail—is one that we at CAFCASS use a lot in both private and public law, since the fundamental principle is to ensure the reciprocal recognition of court orders between the EU states. It saves re-litigating and protects children who move between states, whether they are living there temporarily or permanently. It also requires states to co-operate with each other in providing information in public and private law, and to assist in placing children in public law cases in other member states; this is practical but really critical. The absolutely key point is that these arrangements help to alleviate the inevitable distress and disruption for the children and families involved.

Our key role at CAFCASS is to ensure that the voice of the child is heard in family courts, whether in public law, which is usually where local authorities are making an application for a child to be removed from a parent and taken into care, or in private law, which is usually where parents are separating with such high levels of conflict that the court is involved in deciding child arrangements such as residence and contact. At the moment, my strong sense is that the critical voice of the child is absent from discussions about what happens to family law post Brexit. This will be much to the detriment of children and young people involved in family proceedings, who are often extremely vulnerable and going through a very difficult period in their lives. This can lead in turn to real emotional distress and trauma, and have an adverse effect on mental health and well-being.

Many of these children will have had what is called in the research “adverse childhood experiences” first-hand, including abuse, domestic violence and bereavement. That is why what we do to our family law as we look at the Bill is so important. We need to make sure that it is as child-friendly as possible, rather than something that is done to children and over which they feel they have no control.

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour

My Lords, I rise to support my noble friend Lady Sherlock in this group of amendments. I appreciate the wisdom of noble Lords who have spoken.

I will add a few comments, mainly on children’s rights and child protection, which have been spoken about by the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Tyler. I should declare an interest as the chair of the sub-committee on children in the Council of Europe. The EU does not have legal power to change domestic family law, but in procedural rules it ensures that family-related decisions made in the UK can be recognised and enforced in other countries in the EU. Most children live in families, and therefore family law will often have an impact on children. The current rules ensure a level of certainty for families, and therefore children, who move about the countries of the EU. The rules prevent parents avoiding their obligations by moving around. This is because EU law has uniform rules across member states for family law proceedings, including those involving children. EU law ensures that public law decisions to protect children can be enforced in countries of which the child is a non-national. Such law emphasises the best interests of children, as enshrined in the UN Convention on the Rights of the Child—which I am sure will come up over and over again in the discussion on children—where the welfare of the child is deemed paramount and a child who has the capacity must be given the opportunity to be heard, including in family disputes. The EU maintenance regulation provides for child maintenance to be automatically applicable in any other member state to which either of the parents and/or the child move.

My noble friend and others mentioned the Hague conventions. Other options to ensure family welfare, such as creating bilateral agreements, would take more time to implement and children and families would suffer. The six-week deadline for the resolution of child abduction cases should be retained. Membership of the EU judicial network to facilitate information sharing between courts dealing with family issues should continue. One example of the protection of children is related to the EU directive of the European Council establishing minimum standards for legislative and practical measures to support victims of crime. This includes the specific needs of children and the need to pay attention to services and support in, for example, gender-based or domestic violence. The directive includes special reference to the need to ensure that children’s best interests are the primary consideration and to ensure a child-friendly approach.

I am impressed by and grateful for the report by the EU Committee chaired by my noble friend Lady Kennedy of The Shaws, Brexit: Justice for Families, Individuals and Businesses. It addresses the 1996 Hague convention in respect of parental responsibility and measures for the protection of children. The maintenance regulation is designed to ensure that rules on jurisdiction and the enforcement of decisions relating to maintenance obligations are continued and provides that obligations should be determined in accordance with the Hague protocol. The report comments on the Brussels IIa regulation in relation to divorce, legal separation and the annulment of marriage. It carries specific rules on child abduction and access rights. I will not go into this in detail but will just say that witnesses to the inquiry on which the report is based commented favourably on Brussels IIa. Sir Mathew Thorpe stated that it is a,

“laudable ambition to achieve better justice for European citizens where issues cross the border of member states”,

and viewed the regulation as “broadly successful”. David Williams QC stated that Brussels IIa had spread into every area of our domestic law.

The committee which produced the report expressed concern about the loss of Brussels IIa and the maintenance regulations, in particular the provisions relating to international child abduction. Paragraph 93 of the report states:

“To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm”.

When asked if the great repeal Bill would help avoid any gaps in the legal protection provided by these regulations, Professor Rebecca Bailey-Harris said, “It will not”. Several other witnesses expressed similar reservations. Concerns were also expressed about the impact on the family court system—for example, on the workload which would follow the loss of regulations.

I will not say more on this as we have in our midst a greater expert on these issues than I am, the noble and learned Baroness, Lady Butler-Sloss. But could the Minister give us a view on the proposed post-Brexit alternative solutions offered by witnesses in chapter 4 of the report I have spoken about, or on any other alternative to these issues of family law? I have tried to give a brief flavour of how the whole package of benefits to families will disappear if family law is weakened and if we lose sight of the importance of decisions about Brexit which will affect families and children.

Photo of Lord Farmer Lord Farmer Conservative 3:45 pm, 5th March 2018

My Lords, I apologise that this is the first time I have spoken during the passage of the Bill: I was unavoidably out of the country when it received its Second Reading. My contribution, if I had been able to make one then, would have touched on the vital area of the implications of Brexit for family law.

I understand that, as the noble Baroness, Lady Sherlock, has said, these are probing amendments, but I find myself in disagreement with the noble Baronesses who have tabled Amendments 29, 53 and 336. This is generally not the case: indeed, I and other noble Lords are aware of their very strong track record in championing families in general and family justice in particular. However, under their amendments the UK would either remain entirely subject to EU law in the family law context or enter into some bespoke arrangement—such an arrangement does not exist presently between the EU and any other non-EU member state—which would lead to the same outcome.

Reciprocal arrangements are possible only by being subject to EU laws. The UK government position in the withdrawal legislation is that EU laws on the day we leave the EU will become part of UK national law, but not that we will be bound to those laws on an ongoing reciprocal basis, whether in the short term or for eight years or more. As far as I am aware, this is not being proposed in any other area of UK law. I understand and share the concern for children and families that drives many of those tabling these amendments. However, if accepted, they would lead to a situation in which, in effect, the UK had not left the EU. I will look in turn at Amendments 29, 53 and 336.

Amendment 29 would bind the Government to publish a report on the maintenance of rights in family law within six months of the Act being passed. If that event takes place in June 2018, two years after the referendum, this proposed new clause would take us to late 2018 and a matter of months before we leave the EU. Obviously, the Government need not take the full time, but it is worth saying that there have already been many meetings and consultations: I am aware of an early round with international lawyers and the Ministry of Justice as early as October 2016, with responses requested by the MOJ by November 2016 so it could report to DExEU.

A major family law conference was held by Cambridge University in March 2017 with academics, practitioners and policy advisers from across the UK and some EU nations, again with civil servants in attendance to report back. A couple of other conferences were held last spring. Then over the autumn, I know there were direct meetings between practitioners and civil servants about these issues, including the proposal that we should remain part of EU family law after we leave the EU. These meetings continued throughout the latter part of 2017 and, no doubt, are still ongoing.

Noble Lords will be aware that just before Christmas there was a debate here on the European Union Justice Sub-Committee’s report on civil law matters. Allowing another six months would unnecessarily extend what has already been a long consultation process. Nothing has been said by any government department to hint that the UK Government will contemplate such a dramatic change to the withdrawal legislation that we will continue to be a direct party to EU legislation in one distinctive area of law.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

I thank the noble Lord for giving way; I was anxious to ask him this before he sat down. I respect his professed commitment to the rights of families and children, but he appears to be saying that a rather ideological commitment to escape the jurisdiction of the European court and the other enforcement mechanisms should prevail above the needs of divorcing people and especially children who need maintenance obligation enforced and who may have been the subject of abduction. As the noble and learned Baroness, Lady Butler-Sloss, said—as a judge, she has vast experience in this area—it was much easier once EU law provisions came into force than under the international conventions. Can the noble Lord honestly tell me that he could look children in the eye and say it is better to be outside the reciprocal EU arrangements?

Photo of Lord Farmer Lord Farmer Conservative

I thank the noble Baroness for her intervention. I believe it will be better in the long run. We have mentioned the Hague convention. There are many experts; Professor Paul Beaumont, for instance, is a leading expert, who has said at international conferences that in his opinion the Hague alternatives will be perfectly adequate and satisfactory on our leaving the EU.

Moreover, the amendment anticipates a report on steps taken to negotiate continued reciprocal arrangements—that is, effectively, continued membership of EU family law. This position has not been adopted in any other area of law, as far as I am aware, and is not supported by organisations such as the Law Society.

Photo of The Archbishop of York The Archbishop of York Bishop

I thank the noble Lord for giving way. He really needs to answer the question posed by the noble and learned Baroness, Lady Butler-Sloss. The Hague convention can of course go some way to help, but it is much weaker than the present reciprocal arrangements. It seems to me that it is no good to simply incorporate EU law that we then cannot reciprocate at all. What would be the point? What about, for example, extradition, where we have agreed with other countries that are not part of the EU to have the same arrangements? We have managed to do that for extradition and no sovereignty question has been raised—it is a question of process. Will the noble Lord explain how he thinks simply incorporating EU law into our laws is going to guarantee that British citizens who are in the EU and EU citizens who are in Britain are treated the same in matters of family law? How would that work?

Photo of Lord Farmer Lord Farmer Conservative

I thank the most reverend Primate for his intervention. There is a requirement that our courts, as we heard earlier, would take regard of EU law. We were not being tied to precedent, but certainly—

Photo of Lord Hannay of Chiswick Lord Hannay of Chiswick Crossbench

I am grateful to the noble Lord for giving way, but I have some doubts about his repeated assertion that the sort of approach in the amendments is not being taken anywhere else in the EU statute book. I wonder if he would like to read the Prime Minister’s speech at Munich and her references to the European arrest warrant, and try to parse and construe them in any other way.

Photo of Lord Farmer Lord Farmer Conservative

Am I going to be able to make my speech? I thank the noble Lord for that intervention. I will be referring to the Prime Minister’s speech on Friday, which I think has some bearing and is more up to date. I am happy to talk to the noble Lord following this debate.

The amendment is highly presumptuous in suggesting a report on a measure that has no established government or parliamentary support. Passing this amendment as even contemplating a possibility of ongoing reciprocal arrangements and thence continually being bound by EU law would allow and openly encourage other areas of law, trade and social life to seek the same. This is not what the Government have said they would permit or seek. Acknowledging the possibility of this distinctive arrangement will encourage the hope of other aspects of trading and commercial life in being bound to the EU in our future arrangements.

Finally, the amendment suggests that there should be a declaration whereby a Minister of the Crown considers whether the rights of individuals in the area of family law have been weakened. This is legally controversial—and I think relates to a point just made—because of a difference of opinion on the respective advantages and disadvantages for families of EU family laws. Proposed new subsection (2)(c) in this amendment is highly presumptive of the expectation that there will be weakened rights, and would act to countenance some sort of special arrangement for ongoing reciprocity and being part of EU laws.

Amendment 53 to Clause 6 would give a UK court the power for eight years after March 2019—that is, to 2027—to refer matters relating to family law to the European court for a preliminary ruling, and it would then be bound by that ruling. Moreover, proposed new subsection (1C) states that UK courts must have regard to decisions of the European court for those eight years, but these eight years could be extended with proposed new subsection (1D). Those eight years appear to me to be entirely arbitrary; certainly, they are intended to take us beyond the next general election. But again the intention of the supporters of this amendment would appear to be that we are forever bound by the European court.

This Bill brings EU law into UK law. The Government have made it very clear that we will not be bound by the European court, but we will give strong regard to its decisions. When we apply law which is the same as EU law, the Prime Minister has made it very clear that our courts will look at European case law. The UK courts will not be bound, as understood in the common-law system of precedent in which courts are bound by higher court decisions. This was the result of the referendum and the present approach of the Government. But when it is looking at UK legislation which is similar to or indeed the same wording as EU legislation, there will need to be strong and good reasons—in my words, but as generally understood—for us not to follow it. That is already similar to the way the UK courts look at the Supreme Court decisions of other friendly jurisdictions when dealing with other international family laws—for example, in relation to Hague conventions in respect of child abduction. The UK is well able and frequently does give very strong and high regard to such decisions without being legally bound by them.

The Prime Minister was clear in her Mansion House speech on Friday on this issue. She used very careful words confirming continued strong recognition of European court decisions but not bound in law. We cannot be bound by EU laws in a reciprocal arrangement with the EU in respect of EU laws unless we are also bound by the European court. The EU will simply not countenance the UK being part of any arrangement for being bound into EU laws without being bound into the European court. This amendment must fail because proposed new subsection (1B) requires that we are bound.

One of the reasons that I and others are very keen we leave this aspect of the EU and its political agenda is because the EU intends its laws to have universal application. This means that they do not apply to just intra-EU cross-border family matters. The EU laws must apply to all cases with no other EU involvement—so, at present, a London/New York family or a London/Sydney couple are bound by EU law. This deals with several areas such as divorce jurisdiction and the inability to bring claims for reasonable needs on a divorce settlement. If the amendment is allowed, we will have cases before the UK courts which have no EU aspect—because we will have left the EU—but in which one party could apply for a preliminary ruling to the European court where it suited their litigation advantage. One can imagine the astonishment of lawyers in, for example, New York or Sydney, saying, “But you, the UK, left the EU several years ago in 2019. Why is this still being referred to the EU and subject to EU law?” Today we must lay to rest, once and for all, any suggestion that the distinctive area of family law should alone be bound by European court decisions.

Finally, Amendment 336 inserts a definition into the Bill. First, I can see no other area of law so defined presently before the House of Lords—not criminal law, regulatory law, financial services law or similar, yet these are areas at the very forefront of our relationship with the EU. This shows how distinctive, unusual and highly unacceptable it is for family law to be made into a special case—moreover, a special case going so much against the direction of government policy on leaving the laws of the EU. The fact that this one area of law is included should ring major alarm bells with Government and others.

The amendment refers to two pieces of EU law and erroneously equates these with family law. These two pieces of EU legislation are certainly most used in practice. But if there is going to be this definition then it should be all pieces of EU law in the family law context. There are several others. One relates to domestic violence, whereby domestic violence protection orders made in one EU member state are automatically recognised and enforceable in another. It was brought in primarily for the parts of the EU with land borders to prevent a perpetrator of domestic violence quickly crossing a nearby land border to escape domestic violence orders. It has been used, exceptionally, only a couple of times by the UK, but the fact that it is not included highlights that this definition is not all of EU family law. It refers only to the pieces of legislation which are of most interest to those behind these amendments and allow, for example, the highly concerning practice of “race to issue” which militates against couples in saveable marriages being reconciled to each other.

Importantly there are other international laws pertaining to family law to which the UK is already a signatory and which are satisfactory alternatives to these EU laws. They are created by the Hague Conference on Private International Law. Some of these laws were the models on which EU family laws were built and share many common characteristics. Most fundamentally, these laws are worldwide, with more than 80 signatory countries, working together, co-operating and looking after the best interests of children and the recognition and enforcement of family court orders and arrangements. That is why the UK can leave the EU and have no part in any reciprocal enforcement arrangement without any material detriment to family law and family life. The other alternatives exist, have been used before the EU laws came into existence, and lawyers work with them daily in practice and work closely with Governments around the world in their operation. They work well.

Photo of Lord Liddle Lord Liddle Labour 4:00 pm, 5th March 2018

This is not my area of expertise, but it seems to me that the noble Lord, in his very detailed speech, has not addressed the central point, made by the noble and learned Baroness, Lady Butler-Sloss, about the benefit of being able to enforce decisions in other member states. Is the noble Lord arguing that these wonderful international arrangements, which he referred to as being just as effective as the EU, provide for that enforceability? I very much doubt it.

Photo of Lord Farmer Lord Farmer Conservative

I thank the noble Lord for another intervention. They are a matter of negotiation and finding the best practice, as they are even with the EU. As I said, up until now they have operated well with other Governments around the world. They work well in the USA, Canada, Australia and countless other countries.

The narrow definition of family law in Amendment 336 ignores certain EU laws on the service of documents and taking evidence because we have perfectly satisfactory alternatives through Hague worldwide laws. Moreover, working with worldwide family laws with countries across the world, not just Europe, fits in entirely with the Government’s intention that on leaving the EU we will be a worldwide-facing country, looking at our global role and using the leading initiatives and developments in the UK to aid and encourage other legal systems.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Chair, EU Justice Sub-Committee

My Lords, I am sorry that I was not here at the beginning of the discussion on this amendment. My name is on a later amendment associated with the discussions on family law. As many in the House know, I chaired the group in the European Union Select Committee that dealt with family law. We created the report referred to by the noble Lord.

It is just not true that world law deals with this issue just as well as European law. Every family lawyer will tell you that some directives have made a huge difference to the safeguarding of children, women with abusive husbands and enforcing maintenance orders made in this country. Those directives can be enforced in another country in Europe with great ease without someone having to get themselves lawyers over there. However, you cannot do that with the United States. You have to get yourself “lawyered” up to the eyeballs in America to deal with your husband taking your children there and not returning them to you. If your partner goes off to another part of the world and is not paying maintenance, it is a very expensive and problematic business to get maintenance paid for your children, who need it. Therefore, I ask the noble Lord to please not mislead the House by saying that there is an equality of arms in this respect around the world. That is not true. We seek a mechanism to make this system operate after we leave the European Union—some kind of agreement that makes it possible for children, and perhaps abused partners, to have proper mutual recognition arrangements to enable them to seek remedies and enforcement easily. That is the point of this and that is what is misunderstood by the noble Lord.

Photo of Lord Farmer Lord Farmer Conservative

I thank the noble Baroness for her intervention. Perhaps I can speak to her afterwards concerning countries outside the EU. It is worth mentioning that Professor Beaumont who I mentioned earlier—a leading expert on both the EU and The Hague—said in his opinion that The Hague alternatives are perfectly adequate and satisfactory on our leaving the EU. Apparently, the House of Lords committee does not seem to have heard this evidence.

I am sure noble Lords will be pleased to hear that I am coming to the end of my remarks. This amendment should be rejected because it concentrates on the UK remaining Eurocentric, not global, which is an important point if we are leaving the EU. Academics and lawyers who would have spoken favourably about The Hague laws were not consulted by the House of Lords Justice Sub-Committee, yet practitioners and others have described to me the incredible benefits to children and families from the UK being part of these worldwide international laws.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, the noble Lord, Lord Farmer, is rightly respected for his expertise on a number of subjects—this was not one of them. Indeed, it was palpable that the atmosphere in the Chamber was curdling as he spoke. I remind the noble Lord and, indeed, the Committee, and particularly the Minister, who I suspect did not enjoy the speech we have just heard, about the danger of double standards on this subject. I remind the Committee in particular of Section 1 of the Children Act 1989, and of the standard that that Act imposes on courts. By “courts” I refer to every court dealing with children’s issues, from the Amlwch magistrates’ court, if the noble Lord, Lord Wigley, will forgive that reference or enjoy the name check, to the Supreme Court and, indeed, to the President of the Family Division, a role which my noble and learned friend Lady Butler-Sloss filled with such great distinction. It is worth reminding your Lordships that the “paramount consideration”—those are the statutory words—when a court considers the upbringing of a child or anything to do with the child is that child’s welfare. Section 1 of the Children Act 1989 does not merely deal with physical aspects of the child’s life but includes, for example, in Section 1(3)(a),

“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

Those are the standards that this Parliament places on our courts.

There is a danger that, if the Government do not sort out the problems so ably articulated by those who have spoken to these various amendments, we will have a situation of double standards. The courts will be obliged to apply those standards but our Government will abandon them, possibly merely to avoid a few cases coming before the Court of Justice of the European Union. That is completely unconscionable. I am not saying that the only solution is to fall under the jurisdiction of the Court of Justice of the European Union; there may be alternatives, such as a treaty with the European Union that provides for similar processes, albeit through our own courts, and reciprocal arrangements with other courts. The Court of Justice of the European Union is not a shibboleth—one way or the other. It is just the current way of solving a series of problems, which nobody is able to improve on at the moment.

It would be completely unacceptable to hear from the Minister who responds to this debate words such as, “We hope to negotiate”; “We are considering negotiating”; or “We expect that we will achieve”. That will not do, because it does not put the welfare of children first. So when the Minister comes to reply, I hope that we will hear, specifically, how many meetings have taken place in an attempt to start to negotiate a resolution of issues affecting the welfare of children who may be abducted in the most appalling circumstances; when the next series of meetings is to take place on that subject; at what level it is being done; and to what extent the leaders of the family Bar and the family solicitors are being involved in the process of consultation and negotiation. Otherwise, we will have no option but to adopt something like these amendments on Report.

Photo of Lord McConnell of Glenscorrodale Lord McConnell of Glenscorrodale Labour

My Lords, I very much welcome the amendment in the name of my noble friend Lady Sherlock, and the important questions that she posed to the Minister at the start of the debate. The debate has shown how critically important it will be to get the answers to these questions right, not just in the coming months but in the coming years and perhaps decades. The noble and learned Baroness, Lady Butler-Sloss, was forensic in her description, which came from very real experience, of the benefits of the current system and of what might be lost if we make the wrong decisions in passing the Bill.

I will not go back over all the points that have already been made; in the current circumstances I will be deliberately brief. I will raise two points in particular. First, within the United Kingdom we have different jurisdictions concerning family law and some of the other legal rights that have been mentioned in the debate so far. I would welcome some reassurance from the Minister in his response that appropriate discussions are taking place with the Scottish Government and others to ensure that whatever we enact here in the UK Parliament is appropriate for the whole of the United Kingdom, and not just for the legal system in England or England and Wales.

Secondly, on a point of principle, there is a reason why this subject matters so much. We can have ideological debates about our future economic partnership with the European Union, and we can have ideological or political debates about the financial position before and after exiting the European Union—but children and family law are at the very core of the things that matter to us most: the relationships between parents and children; the relationships between children and other children who might be estranged from their brothers and sisters; the relationships between adopted children and their natural parents, whom they may wish to contract later in life; and the relationship between estranged couples.

That is why this debate is different from others, and why in this instance I urge the Government and everybody on all sides who supports or sympathises with Brexit to look for solutions to these issues that deal with the personal, not the political. I urge them to ensure that, whatever arrangements are finally agreed, those personal rights will give families an opportunity to continue contact and to seek appropriate rights and redress, and to be able to do so in the easiest and least expensive way possible.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:15 pm, 5th March 2018

My Lords, I hoped that I would get an opportunity to intervene, as the person who first presented to Parliament the text that has just been referred to in Section 1 of the Children Act. I strongly support the view that the interests of the children in question should be the primary consideration in everything that applies in family law. I am interested to see that the definition of family law chosen in Amendment 336 is not one of ours but is imported from the European Union. However, that is a rather unimportant point.

If this Bill is ever to finish its Committee stage, it is important that we realise that it is primarily concerned with putting existing European law which is effective in our country on to the statute book in a way that will work on Brexit day. It is not concerned with the negotiations—although your Lordships are interested in how they progress, and nobody is more interested than I am in how children’s affairs will progress. I agree with what has just been said: it is a question not of politics or ideology but of making sure that we have the best thing we can for our children. Incidentally, I do not agree that we did not enjoy the speech of my noble friend Lord Farmer. He can speak for himself, but it is not for us to make judgments of that kind about our fellow Members of this House—and I hope that nobody is judging me too hard, either.

My point is that the Bill cannot provide for reciprocity. We cannot legislate for the laws of France, Germany or anywhere else in the European Union—but we can do our best to ensure that our law conforms as far as possible with existing European law when Brexit day comes, because that is an invitation to the others to reciprocate. If we have a system that does not in any way mirror the existing European system when Brexit day comes, how can we ask others to do the same? We cannot. Therefore, it is a question not of reciprocity but of ensuring that this Bill does things properly from our point of view and that the ground that we have to plough for reciprocity is properly ploughed and ready. That is why the Bill is so important.

It is also fairly important that we make some progress with the Bill. Therefore, I will say simply that I entirely endorse the importance of family law and the reciprocal arrangements with the EU, and I would like to see more effective reciprocal arrangements with many other countries. From my time as Lord Chancellor for 10 years I have strong and sad memories of receiving many people who complained that their children had been abducted and taken to a country from which they could not be brought back. That is not the way in the European Union and, fortunately, it is not the way in quite a number of other countries.

It is true, however, as the noble Baroness said, that you may be required to employ a lawyer. In fact, it is rather difficult to get your maintenance payments in this country, never mind the United States. I did my best to try to improve that situation with the CSA—but it has not proved very satisfactory, as the noble Baroness knows very well. It was a difficulty: many times people came to me and said that although they had an order from the court for money, they could not get a penny.

This is an important series of amendments and it is right that we should look at them. However, we must restrain ourselves from considering the negotiations if we are going to finish this Bill at all.

Photo of Baroness Deech Baroness Deech Crossbench

May I ask the Minister a few questions, because I suspect that his response is going to proceed on the basis that the Hague conventions are sufficient? It is true that the biggest number of abductions that come to our courts relate to Pakistan, the USA, Australia and then Poland. It would also be very sad if either we or the rest of the EU put ideology ahead of the welfare of children. Therefore, I want to know what the Minister’s prediction is as to the arrangements that might be made.

Overall, I feel that the amendment is perhaps too narrow. We have units in this country that study the effect of abduction: we have a permanent bureau, the International Centre for Missing and Exploited Children and the International Child Abduction and Contact Unit, which can look not just at the European Community countries but at the others. We need a global view of the welfare of children and cross-border abduction, not just an EU view. How does the Minister think we can cope, given that the EU takes apparently 164 days to deal with returned children, whereas we manage to do it in 90 days? For a small child, a matter of a few months is extremely important.

Is the Minister satisfied that we can swiftly and properly sign up to the 2007 Hague convention, which at the moment we are a party to only through the EU? We need to, and we should be able to, join it in our own right. Those are the questions that I put to the Minister.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I am obliged. “Reciprocity” was the term used and emphasised by the noble Baroness, Lady Sherlock, and my noble and learned friend Lord Mackay of Clashfern. They both recognised the significance and the relevance of that term in the context of the issue we are discussing and of this Bill. They may have approached it from different directions, but there is a common recognition there. I will come back to that point in a moment, particularly in the context of this Bill and not the other Bills that may follow it in due course.

I acknowledge the commitment of the noble Baroness, Lady Sherlock, to family law and the rights that it provides to many of the most vulnerable in our society. I also extend my appreciation to the report on this subject produced last year by this House’s EU Justice Sub-Committee, under the chairmanship of the noble Baroness, Lady Kennedy. In addition, I understand that the noble Baroness, Lady Sherlock, met my noble friend Lord Callanan and officials to discuss this matter a week or so ago. I observe also that officials have engaged in discussions with a variety of groups, including Resolution and the Family Law Bar Association, and others at an EU level, to discuss this critical issue.

To the noble and learned Baroness, Lady Butler-Sloss, I say that I would be perfectly willing to meet—or at least to arrange a meeting with other Ministers who might be more directly involved in this issue—at some stage in order to discuss with all relevant and interested parties the issues that arise here.

I emphasise that the Government are committed to maintaining an effective system for the resolution of cross-border family law disputes once the UK leaves the EU in 2019—of course we are. Any system which requires cross-border dialogue and co-operation needs a common language to be effective. To that end, as part of our future partnership we want to agree a clear set of coherent common rules about: which country’s courts will hear a case in the event of a dispute—that is choice of jurisdiction; which country’s law will apply—that is choice of law; and a mutual recognition and enforcement of judgments across borders. That can be achieved within the EU and beyond the EU as well.

We are only beginning to embark on the negotiations of our future partnership with the EU 27 but we set out our position on this in a future partnership paper in August last year. That paper makes clear that an effective framework of civil judicial co-operation, which includes family law, is an important part of any deep partnership we want to establish with the remaining members of the EU. We believe that the optimum outcome for both sides will be a new agreement negotiated between the UK and EU as part of a future partnership which reflects our close existing relationship.

The noble and learned Lord, Lord Mackay of Clashfern, made the point that the object of this Bill is to bring into our domestic law existing EU law so that we start out in the same place as the other members of the EU. We have to bear in mind the means of ensuring that litigation in a cross-border case involving UK and EU parties, wherever it takes place, can be as easy, efficient and cheap as possible. Such an agreement is necessary to provide confidence and certainty to families and individuals.

As the noble Baroness reminded us in backing up a point well made last year by the EU Justice Sub-Committee in its valuable report, reciprocity is key. This Bill can bring EU rules and regulations across into UK law, but it cannot place requirements on the remaining EU states. That is precisely why we want to negotiate a new deal with the EU and, as of this month, we are set to embark upon that negotiating process.

The current reciprocal rules on which we hope to model a new agreement provide a legal route to resolving what are often difficult and intractable problems. As noble Lords may know, and the noble Baroness readily appreciates, that can include determining in which member state a divorce takes place, child arrangements are made, maintenance issues are determined and, on the fraught issue of child abduction, the return of an abducted child is facilitated.

As I have mentioned, this area goes far beyond the EU. The EU, of course, is important, but we have the Hague conventions with respect to children, one in 1980 and one in 1996. The Hague convention in 2007 has the EU as a signatory, not the individual members of the EU. We will be taking steps to engage with the council on the Hague conventions in order that we can become individual signatories of that convention. I acknowledge the well-made point of the noble Baroness, Lady Sherlock, about the three-month time lapse that could potentially occur. We are mindful of that in setting about the process of negotiation because no one wants to see a gap in the process.

We also have the Lugano convention which engages with not only the EU, as a signatory, but also the other parties to it—Norway, Iceland and Switzerland. Returning to the point raised by the noble Lord about having regard to cases of another court, as between the Lugano convention and the EU it is agreed that each will have regard to the decisions of the other’s court. They are not bound by them or subject to the jurisdiction of the other, but they will have regard to them and take them into consideration when construing the rights and obligations that arise under these various conventions. So it is not making yourself subject to the CJEU but, in general terms, it is saying that you will respect its decisions and look at them for consideration.

Perhaps I may elaborate on that a little. The role of the CJEU is often either misunderstood or exaggerated in this context. What we are concerned about, generally speaking, is the ability of a court in one jurisdiction to recognise the pre-eminent jurisdiction of another country, the willingness of the courts in one country to recognise the orders made by the courts of another country, and the willingness of the courts in one country to enforce the judgments of another country in respect of these matters. Of course, if you are within the EU, the construction of a particular provision such as the Brussels convention—Brussels Ia, IIa and so on—would ultimately be a matter for the CJEU. However, in negotiating with our other partners, we recognise where we start from and the wide ambit of these conventions, and we understand how critical they are to family life going forward. No one is going to ignore them or turn their back on them, so I can assure noble Lords that we are intent on negotiating this. The precise way in which it will be done will have to be the subject of negotiation with our EU partners.

The noble Lord, Lord Carlile, asked me, as it were, to enumerate the negotiations that are ongoing, but so far we have been dealing with the separation agreement. From March we have set upon the negotiation of our future partnership; that is what the Prime Minister set out in her recent speech.

With regard to the other jurisdictions within the United Kingdom, officials within the Ministry of Justice are in regular contact with officials in Scotland and in Northern Ireland in regard to these matters. Of course we take account of those, and I hope that the noble Lord, Lord McConnell, will recognise that I am conscious that there are different laws in the different jurisdictions of the United Kingdom.

Photo of Lord McConnell of Glenscorrodale Lord McConnell of Glenscorrodale Labour 4:30 pm, 5th March 2018

I thank the Minister for giving way. Of course discussions are taking place between officials in the different departments, but are Ministers talking to each other and are agreements being reached that will ensure that the right decisions are made to serve the different jurisdictions of the UK?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I cannot say that agreements are being reached at this time because we are only setting out on the process of negotiation with regard to the future partnership; I cannot take that any further at this stage. However, our position is that family law co-operation is critically important, and it is no different from our general position with regard to civil co-operation.

I would acknowledge that the development of Brussels IIa is an improvement on the Hague conventions, and indeed I believe that some would acknowledge that it is an improvement on the terms of the Lugano convention in this regard as well. The terms have been refined and developed, and it may be that there will be a further negotiation and conclusion over Brussels IIa—what might be termed as Brussels IIb, I suppose—which may well occur after Brexit. Nevertheless, in order to ensure that we have reasonable alignment and therefore the basis for reciprocity, we will want to take into consideration such developments in the law.

Let us be clear: generally speaking, these developments take place for all the best reasons. They are developments that reflect improvements, so why would we turn our face away from improvements in the law on the reciprocal enforcement of family law matters related to maintenance, divorce and child abduction? We have no cause or reason to do so and of course we are going to embrace these matters.

I appreciate that the amendments in this group are probing in nature, but I shall try to address some of the specific details. The report called for in the first amendment tabled by the noble Baroness would require the Government to publish details of how rights in EU family law operate in domestic law as well as key details of the negotiations within six months of this Bill receiving Royal Assent. With great respect, that is an arbitrary deadline which makes no reference to the position of the negotiations at that stage or the other documents that the Government will be publishing on the subject. These documents include not only any final agreement reached in the negotiations regarding continuing judicial co-operation on family law, but also the explanatory material that Ministers will publish when they exercise their key Bill powers to amend retained EU law. That will include retained EU family law. So, as I am sure the noble Baroness is aware, any agreement between the UK and the EU will be detailed clearly within the withdrawal agreement and domestically legislated for in the upcoming withdrawal agreement and implementation period Bill, which Parliament will have a full opportunity to scrutinise. However, I have to say that it does not arise in the context of this Bill.

The next amendment concerns the jurisdiction of the CJEU. We will discuss that in more detail when we come to debate Clause 6, so I will not take up a great deal of time although I want to make a couple of points. First, it is not necessary for the UK to be subject, unilaterally, to CJEU jurisdiction to secure a reciprocal agreement in this field any more than it is a requirement of the signatories to the Lugano convention to secure agreement with Brussels regarding family law matters. There are a number of existing precedents: not just Lugano, but the Hague convention as well. As I have indicated, the jurisdiction of the CJEU is sometimes either exaggerated or misunderstood in this context. In the EU, it is of course the final arbiter of the construction and application of EU instruments, but that does not mean that we have to embrace the CJEU’s jurisdiction to have a suitable partnership agreement with the 27 members of the EU.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

In his lengthy reply, the Minister appears to perpetuate some of the misunderstanding that underlay the Prime Minister’s speech on Friday, which is that somehow if you mirror the laws of the EU 27 and start from the same position, you do not need the rest of what Commission jargon calls the ecosystem—in other words, the common rules and the enforcement of institutional and supervisory mechanisms. Surely that is the difference between the EU context and the Hague and Lugano conventions, and accounts for the difference between having regard to and mutually recognising and enforcing judgments. It is part of a complex of arrangements. There is a qualitative difference between the international arrangements and the EU arrangements, which does not seem to come through in the Minister’s response.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

With respect, neither I nor the Prime Minister misunderstood any of that. With great respect, I want to correct the noble Baroness on one point: that ecosystem is simply not required for mutual recognition and enforcement of judgments by two separate jurisdictions. That happens between the countries of the Lugano convention and countries in the EU in any event. I am talking about starting from the same point, with common rules regarding judicial recognition and enforcement, and moving from there to the negotiation of a new partnership. We do not foresee the sort of difficulty that the noble Baroness alludes to in that context.

At this stage, I want to come back to the point I was seeking to make. First, it is not necessary for the UK to subject itself unilaterally to the CJEU’s jurisdiction to secure a reciprocal agreement. Many other countries do that. Secondly, in any event, the Government have been clear throughout debate on the Bill that it is in no way designed to legislate for any future agreement between the UK and the EU. That is not the purpose of the Bill. We cannot unilaterally legislate for our future relationship with the EU simply by including in our domestic legislation certain provisions about recognition of family law, maintenance and other agreements—a point that the noble Baroness, Lady Sherlock, readily acknowledged at the outset of her opening remarks some considerable time ago.

I understand that the intention behind Amendment 120 is to make sure that there can be continued application of international agreements, such as the Hague 2007 maintenance convention, which the UK currently operates by virtue of its membership of the EU. Of course, we are intent on doing that; as I noted earlier, we understand that there is a potential three-month gap there, which we need to address. I hope I can reassure the noble Baroness that we are clearly intent on securing an agreement, albeit not as an EU member and not subject to the direct jurisdiction of the CJEU, which ensures that we can maintain the highest standards of family law and mutual recognition, whether it be jurisdiction, choice of law or enforcement. I invite the noble Baroness to withdraw her amendment.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

I entirely understand the response the noble and learned Lord gave to the effect that you can, of course, have a treaty to ensure reciprocity, but he does not appear to recognise the role of the CJEU in the difficult cases where there is an argument about what reciprocity means and the obligations on states that are parties to that treaty. I do not know that there has been any explanation from the Government of how we deal with the difficult cases without accepting the jurisdiction of the CJEU. Would he like to elaborate?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am happy to repeat the observation I made earlier: these difficult cases are resolved, for example, between Norway, Iceland, Switzerland and the other members of the Lugano convention embraced within the EU. In that context, each of the courts—the Lugano court and the CJEU—respects each other’s judgments, but they are not bound by them. That happens all the time. Ultimately, it would be for the domestic courts of each jurisdiction to determine what they were and were not prepared to enforce in the context of these agreements. That does not present any insurmountable difficulty, any more than it does in the context of the reciprocal recognition and enforcement of orders made pursuant to the current Hague conventions.

Again, I am obliged to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Kennedy of The Shaws, for the report. I repeat my offer of further meetings to the noble and learned Baroness, Lady Butler-Sloss.

Photo of Baroness Sherlock Baroness Sherlock Shadow Spokesperson (Work and Pensions), Opposition Senior Whip (Lords)

My Lords, I thank all noble Lords who have contributed and the Minister for his reply. When I tabled these amendments—I realise that they have not found favour in all corners of your Lordships’ Committee—my aim was simply to have a discussion that I thought had not happened since the Bill began. It had not happened in another place and, with all respect to the Government, it has not been happening in the kind of detail we need in the publications we have seen so far. We have at least now begun to have this conversation and I am delighted that we have.

The debate has established to so many people quite how important these family law provisions are. They are fundamental to the welfare of so many of our children, because issues of child abduction, child protection and child contact are caught up at the centre of this. Those points were made very well by my noble friends Lady Massey and Lord McConnell of Glenscorrodale, and by the noble Baroness, Lady Tyler, and the noble Lord, Lord Carlile. The importance of a single effective family law system was stressed very well by the noble Lord, Lord Marks, who also expressed how well-functioning and widely admired our system is. The need for it was underscored so well. I am hugely grateful to the noble and learned Baroness, Lady Butler-Sloss. When I heard her speech I wanted, in the way children do nowadays, to say “what she said”. She expressed it so well that I should have walked away at this point, but I think convention prohibits it so I press on.

I will pick up two or three points that were in contention. I do not think I will take up all the points made by the noble Lord, Lord Farmer, but his most important contention was that the provisions in the Hague conventions and elsewhere are sufficient unto the day. I hope he will take the opportunity, when he can read Hansard, to reflect on the comments made by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Kennedy of The Shaws, and to look at how the weight of opinion in family law is clearly against him on this matter.

I would be happy to discuss this further outside the Committee, but to make a couple of specific points, Brussels IIa is distinctly better than Hague because it has a stricter timetable on abduction. There is a back-up mechanism—a second bite of the cherry—so that the child’s home country has another opportunity to overrule a decision by another court not to return an abducted child. The Brussels II recast will make that far better still.

The noble Lord, Lord Farmer, mentioned the provisions on divorce, which I found harder to understand. My understanding is that the 1970 Hague convention is much more restrictive than the current arrangements and that very few EU members are signed up to it anyway. It has no direct rules about jurisdiction, so we would be back to these forum conveniens arguments deciding expensively where which court should rule. Those things take at least two days in court, probably with a circuit court judge or above. I do not think there is a practical alternative on divorce, but I would be very interested if the noble Lord wanted to intervene or to talk to me later to challenge that.

I hope that we would all widely accept that the current EU provisions are the superior offering available. The challenge would be to find out how we can best salvage what is there. I take the point made by the noble and learned Lord, Lord Mackay of Clashfern, from whom I dissent with great trepidation, that the Bill is doing what it can to replicate the current provisions. The problem is that, by importing those provisions, it is not replicating the current situation, because, by doing so in a context of no reciprocity, it is creating asymmetry between our obligations to the EU 27 and theirs to us. That needs dealing with very early on.

I am grateful to the Minister for acknowledging some of the issues here. I am pleased to hear that the Government are aware that this matter needs urgent attention and that negotiations on it have begun this month. I am grateful for his reassurance that the Government are attending to the issue in respect of 2007 Hague convention and will, I presume, therefore look to give notice subject to permission of the EU. I am grateful to him also for agreeing to meet the noble and learned Baroness, Lady Butler-Sloss, to discuss this matter further, because that would give me considerable assurance.

I was grateful to the noble Lord, Lord Callanan, for inviting me to meet him. He quite simply asked me what I was looking to do with these amendments. I explained then exactly what I have explained to the Committee today: all I wanted was for the Government to come to the House and tell us whether they wanted to replicate as far as possible what we have now and, if not, what the alternative would be, how it would be implemented, under whose aegis and what would happen in the interim. From what I have heard today, we are a little step down that road. We have some time between now and Report. We should give the Government the opportunity to make more progress and, in discussion with the noble and learned Baroness, Lady Butler-Sloss, and others, to explain more about their thinking. I hope that we might then if necessary—maybe it will not be necessary—return better informed on Report.

I thank all noble Lords for their contributions. I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendment 30

Moved by Baroness Jones of Moulsecoomb

30: After Clause 4, insert the following new Clause—“EU Protocol on animal sentienceThe obligation on Ministers of the Crown and the devolved administrations to pay regard to the welfare requirements of animals as sentient beings when formulating law and policy, contained within the EU Protocol on animal sentience as set out in Article 13 of Title II of the Treaty on the Functioning of the EU, shall be recognised and available in domestic law on and after exit day.”

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, this very amendment has been debated in the other House and was voted down by 18 votes. I think the Government were shocked by the public outcry at the amendment being lost.

EU law puts an obligation on the Government and devolved Administrations to “pay full regard” to the welfare requirements of animals when Ministers make decisions and implement policies. This means that Ministers have to think carefully about how their decisions might harm animals.

The British Government played a key role in making this law during our term of EU presidency. It has influenced more than 20 pieces of EU law, including the ban on conventional battery cages for chickens and the ban on cosmetics testing on animals. Certain lobby groups claim that protecting the animal sentience laws will be disastrous; for example, that farmers will not be able to control agricultural pests or to go out and shoot pigeons. This simply cannot be true. If it is not the case with the law as exists today, then nothing will change tomorrow if we retain it.

The Government’s stated intention in the White Paper was for the withdrawal Bill to bring all EU law into UK law and then only amend retained EU law in future legislation. I have raised this issue previously and find it rather offensive that the Government would make such a promise and then not honour it.

Ministers have admitted that these animal protections will be lost as the Bill is currently worded. I understand that it is unfortunate to have to make “single issue” amendments to the Bill, but unless and until we are able to fix the Bill properly to retain all EU law, I have little option but to propose this amendment.

As a compromise when the amendment was proposed in the other place, the Government said that a new Bill would be created to include protections relating to animal sentience—I am sure that they will claim today that my amendment is not needed because of that new Bill. However, the Government’s proposals are weaker than the EU law. They have changed the wording in the draft Bill and included a much broader list of exceptions. Ministers would have only to have “regard” rather than “full regard” for animal welfare, and there is a massive loophole whereby a Minister can make decisions harmful to animal welfare whenever there are other matters of public interest.

A legal opinion commissioned by Friends of the Earth concluded that the Government’s proposals make it far too easy for Ministers to ignore animals, and their decisions would be subject to legal challenge only where they were so irrational that no reasonable authority could have come to them. That is a rather broad exception. The Government’s proposals do a very good job of appearing to protect animal rights, while actually reducing them to near zero.

The House of Commons Environment, Food and Rural Affairs Select Committee looked at the Government’s draft animal sentience legislation and tore it to shreds. It basically said that it should be removed from the animal welfare Bill and kicked into the long grass. So it looks likely that, despite the Government’s best intentions, their draft legislation on animal sentience might never see the light of day, let alone reach the statute book. We need to keep this in the withdrawal Bill: it is essential that we retain the existing provisions of EU law. We cannot allow a gap in protections between Brexit day and the point at which the Government are able to provide a suitable animal protection Bill. Ministers have been telling various people that animal sentience is already protected in UK law and that we do not need my amendment. If so, why have the Government drafted their own proposal on the issue? The situation is very simple: this protection does not exist in UK law, it stems from EU law.

Without this amendment to retain Article 13, animals will lose these protections, there being only the vague hope that the Government might one day bring forward a Bill. Once it is retained, we can always go back to it and change it with a future Bill—I would be happy to work with the Government to improve these animal protections—but in the meantime my amendment will keep these animal protections once we leave the EU. I beg to move.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, it gives me great pleasure to follow the noble Baroness—I am sure we will have another opportunity to consider the contents of her amendment—and to speak to my own Amendment 212, which inserts a new clause. I hope that I am not responsible for the typo in subsection (3), which refers to, “the Untied Kingdom”. It is not in my interest or that of the country to untie all the arrangements that we have in the United Kingdom.

The purpose of this amendment is to consider,

“border arrangements relating to animal welfare”,

and broaden it out to other themes as well. I am delighted to see my noble friends the Minister for Exiting the European Union and the Minister with responsibility for agriculture in their place to hear these concerns. As of 11 pm on 29 March 2019 the UK becomes a third country and will be treated as such until the new relationship and other arrangements are in place. In her speech on Friday the Prime Minister set out five tests, one of which is that any agreement on our future relationship must protect people’s jobs and security. I wish to consider these remarks in the context, specifically, of the border between Northern Ireland and southern Ireland.

In our debates on Amendment 18 in Committee last week we were told, including by the Minister, that the Bill represents a snapshot. That snapshot would mean that there are no checks at borders between Northern Ireland and southern Ireland because of the common travel area. Indeed, the first scenario that exists today is that the Belfast agreement of 1998 setting up the common travel area means that there are currently no checks on the border between Northern Ireland and southern Ireland. The second scenario assumes that there will have to be a border if we have either a free trade area or, worse still, WTO rules, in which case there will be border checks. I reminded the Committee that that border is 300 miles long.

In preparing for today I came across a rather useful piece which I found, I regret to say, on Twitter, and which I bring to the attention of the Committee. It is by Katy Hayward, whom I believe teaches and lectures at Queen’s University Belfast. She looks at the case of Britain being outside the single market and the customs union, either in a free trade agreement with the EU or under no deal, and it appears that agricultural products would have to be checked at the border. Assuming that animals are moving across the Irish border, I put to the Committee that this cannot be done by technology, either for this category or indeed for food, farming and agricultural products. Instead, there will have to be physical checks and inspections by veterinary surgeons and other enforcement officers. This will also be because we have very high standards of animal welfare, animal health and animal hygiene in this country—which I am immensely proud of—which mean that goods passing across the border will have to meet EU requirements going into Ireland and our requirements coming into the United Kingdom from Ireland.

I draw the Committee’s attention to what Article 5.1 of the draft protocol published by the European Commission last Wednesday, 28 April, says about agricultural trade:

“The provisions of Union law on sanitary and phytosanitary rules”— please do not ask me what phytosanitary rules are because I have not had time to find out—

“listed in Annex 2.5 to this Protocol shall apply to and in the United Kingdom in respect of Northern Ireland”.

For the other 27 European Union member states, food and other agricultural products coming into Ireland from the UK, whether from Northern Ireland or Great Britain, will be in free circulation within the remaining single market. The remaining 27 member states will demand reassurance on standards, not least because some may seek economic and competitive opportunities from the Irish authorities in these circumstances.

The purpose of the amendment is to seek reassurance from the Minister that the Food Standards Agency will have the staff and resources it needs to ensure that these cross-border arrangements, when in place, will be policed properly.

Photo of Lord Hain Lord Hain Labour

The noble Baroness is making a very compelling argument about the agricultural and livestock issues associated with the Irish border. I suggest to her that it is even more compelling if the Committee takes account of the fact that many of these farms actually straddle the border; in other words, livestock moves back and forth of its own volition all the time. It is absolutely vital that these phytosanitary issues are addressed but the Government seem to be in denial about them.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I am grateful to the noble Lord for that point. He is much more familiar with Northern Ireland and these arrangements than I am, but I am very cognisant of this and I am sure that the powers that be are as well.

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench

My Lords, I too find the word “phytosanitary”—the Brussels term—a bit of a nuisance. “Biosecurity” is a term with which I am easier. One might wish to look at these issues with respect to the Irish border rather differently from the way in which one looks at the movement of persons and of goods. I will say nothing about the movement of goods and persons for now but will speak simply about the movement of beasts—and, indeed, carcasses. It seems to me that there is probably a remedy which consists in devolving standards of biosecurity—yes, to Stormont should it come back into operation—with the proviso that they may not go lower than EU standards and, of course, UK standards. This might give the desired level of protection for the movement of animals and of plants. Unfortunately, the movement of plants is in the hands of the wind and has caused great damage in Northern Ireland because of the fact that it cannot easily be controlled. There, I believe, would be the place to look.

Just on one other point, I say that the common travel area dates from the 1920s not from recent years.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I am most grateful to the noble Baroness and I think she confirmed the need for physical checks. I have not considered plants or people in Amendment 212. There is a very real problem, which I have raised separately and privately, of the tripartite agreement between France, Britain and Ireland in relation to racing. That covers not just the racehorses but the stable lads and jockeys. But for today’s purposes I am restricting my remarks to animals and food products. The other reassurance I seek is that there will be sufficient vets. We might not have sufficient vets when these arrangements come into place next year, or other relevant inspectors at borders and UK ports by 11 pm on the magic date of 29 March 2019.

It is fanciful to think that animal welfare, health and hygiene can be dealt with by technology, unless the Minister can put my mind at rest on that. I am having great difficulty with the arguments perpetuated by those who wish us to rush into these new arrangements without considering what needs to be in place. I know from my conversations with the Food Standards Agency that a whole raft of internal domestic legislation needs to be brought into play.

It has been stated that the United Kingdom becomes a third country on the date of Brexit, and that UK food businesses have to assess the need for and make changes to comply with the multiple regulations, including,

“the labelling of food placed on the EU-27 market as of the withdrawal date”.

The Minister will no doubt be familiar with that notice to stakeholders from the EU Commission dated 1 February this year, on the withdrawal of the UK and EU food law. That notice sets out an alarming number of regulations, which I presume will fall into the category of “directly applicable” but which will form the subject of the Bill. They will have to be transposed by the time that we leave, so I would like an indication of what the timetable is. The notice impacts not just on the UK and national authorities in preparing, but on private parties such as food producing businesses. Many of those must ensure that they comply with these regulations, presumably by 30 March next year.

There is also a need to prevent the import of what I would say was substandard meat into the United Kingdom. This is a different issue from that of the northern/southern Irish border. That relates to imports of food and meat from Argentina, Brazil and the USA which meet lower standards—often considerably lower—than consumers in this country are used to.

The spectre is also being raised of a free trade agreement, as the Prime Minister set out on Friday. I will refer to the OECD paper on free trade arrangements, which is doing the rounds of the Committee at the moment. It specifically sets out that, as a general rule, developing countries are normally and rightly helped more in those circumstances, but that sometimes has the unintended consequence of pushing food prices up here. We have already seen how the 15% to 20% fall in the value of the pound on the result of the referendum served to push prices up. That is before we even consider what the impact will be if there is no deal, or what the consequences of tariffs as well as non-tariff barriers and rules of origin will be. We will then have to agree on the nomenclature of each individual product. Obviously if it is a carcass, as the noble Baroness suggested earlier, it is easily identifiable; but if it is a sausage, it is commensurately much more difficult to describe and agree on before the tariff can be set.

I understand that many of the small and medium-sized companies involved in the production of food are extremely alarmed at the potential increased cost for them. Currently, the UK exports to the EU 40% of our lamb, 80% of our dairy products and 75% of wheat and barley. The NFU and other farm organisations argue that it is vital that we have zero-tariff, frictionless trade with the EU, as indeed the Prime Minister seeks. I point out that the EU is far from self-sufficient in the sheepmeat sector and that it imports considerable quantities from New Zealand and Australia. The UK is currently one of four producing member states, including also Spain, Greece and France, which between them produce 68% of the EU’s sheepmeat requirements.

I emphasise that having been brought up in Teesdale in the Pennines, represented North Yorkshire and met farmers regularly, I know that the importance of live trade to hill farmers across the whole United Kingdom is substantial. While the live trade may be small in quantity and highly regulated, it provides a substantial livelihood to hill farmers which would be threatened. If we end the live trade, it will have the perverse consequence of opening the way to more imports into the EU from New Zealand and Australia. Australian and New Zealand lamb already accounts for 23% of EU consumption.

To sum up, with Amendment 212 I am seeking an assurance from the Minister about the type of border checks that will be required for animals and animal products and whether physical checks on farm and other agricultural products will be required. Will he admit that technology simply will not work and, if that is the case, can he assure the Committee that the FSA, vets and other enforcement officers will have all the staff and resources they require? I also seek a commitment from the Minister that all the regulations set out in the notice I referred to will be in place before March next year. Finally, I hope he will accept that in the context of Brexit and our trade with the remaining EU 27 member states, the limited live trade in animals that exists for fattening and finishing should continue for the sake of the livelihood of hill farmers everywhere in the UK.

Photo of Baroness Bakewell of Hardington Mandeville Baroness Bakewell of Hardington Mandeville Liberal Democrat Lords Spokesperson (Environment, Food and Rural Affairs) 5:00 pm, 5th March 2018

My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, on Amendment 30, to which I have added my name. Coming as it does after the previous vital group of amendments on family law, this group is on a very different aspect of the impact of the Bill. As the noble Baroness, Lady Jones, said, this issue was debated in the other place. On that occasion, there was much rhetoric about whether animals can feel pain and emotions. I can only assume that those who deny animal sentience have not visited the countryside in the spring. Surely those who see young lambs running around with each other, teasing, jumping and enjoying the thin sunshine and light breezes do not assume that that is not a natural activity. Similarly those who see sheep lamb in the depths of winter, as many do, and see their offspring shivering in the bitter winds and driving rain cannot imagine that they would not choose to find warmth and shelter if they could.

There are many farmers and experts present in your Lordships’ House, along with those like me who have no connection with animals other than that we live in the countryside. We will all have heard and suffered the pitiful lowing of a cow which has recently been separated from her calf, even though it may be in an adjoining field. This distressing calling for her calf can go on for hours and long into the night. She misses her calf and wishes everyone to know this so that eventually they may be reunited by her persistent calling. Farrowing pigs in metal arcs scattered around open fields are able to root around in the dirt and keep a watchful eye on their playful young in peace and tranquillity. This is a very far cry from farrowing crates in which they do not have enough room to turn around and certainly cannot nurture their piglets.

Some noble Lords will think that I have a very rose-tinted view of the countryside in assuming that young animals enjoy playing, exploring and getting into mischief. Very many children’s books give human characteristics to animals. Beatrix Potter’s books are a very famous example. Some of these characterisations are fanciful, but others are based on observing at close quarters the behaviour of animals. Those who have met a small troop of escaped and inquisitive piglets marching down the middle of the road looking for adventure and trouble cannot deny that many of the fictional caricatures are based on fact. Lambs like to play, piglets like to investigate their surroundings and calves are attached to their mothers. The very process of suckling for their sustaining milk means a bond is formed.

As we move forward with Brexit, it is essential that the protocol on animal welfare is high up the list of government priorities. The United Kingdom is nothing if it is not a nation of animal lovers. I have often been surprised and alarmed, as an elected councillor, at the number of letters which people have written to me about animal welfare issues, including hunting, compared to the very few I would get about child cruelty and abuse—although this latter subject has recently moved up the consciousness of the nation, as demonstrated this afternoon. If the Government do not rigorously defend and transfer into domestic UK law Article 13 of Title II of the Lisbon Treaty on the Functioning of the European Union, I fear this will be a very serious miscalculation of the mood of the country on this issue.

Organic farmers who have built up their award-winning herds over many decades prize the quality of the meat of their animals, which rightly fetches high prices in the marketplace. Butchers are keen to demonstrate to the restaurants and hotels they supply with meat which particular farmers it comes from. For their part, catering establishments which believe the quality of the raw meat is half the secret of a successful dish and to a steady flow of customers are also keen to list the source of the meat and fish on their menus.

Organic and other farmers keen to sell to quality outlets will tell you that the way in which their animals are slaughtered affects the flavour of the meat from the carcass. They believe an animal that is stressed at the point of slaughter will produce meat of an inferior quality to that of an animal that is slaughtered completely unaware of what is about to happen to it. This is very important to those farmers who have nurtured their animals to produce a high-quality product.

Standards of animal welfare in abattoirs and slaughterhouses are important, as is the presence of a qualified vet. Many of these vets currently come from EU countries. Can the Minister give reassurances to the Committee that, post Brexit, there will be sufficient trained veterinary officers to ensure robust standards of animal welfare at the point of slaughter? Those of your Lordships who are vegetarian or vegan will not be much interested in the quality of the meat which comes out of the abattoirs, but I believe they will care very much about the way in which the animals are treated as they come forward for slaughter.

Just as it is unacceptable for animals going for slaughter to be nervous and afraid, it is unnecessary, damaging and causes suffering to transport live animals to the EU for slaughter. If we have insufficient abattoirs in the UK to cope with our own animals, then we must increase that capacity. Just as we should not export live animals for slaughter, we must not accept live animals sent to the UK from the EU to be slaughtered here. As the saying goes, there is many a slip between cup and lip, and in the transfer of law from the EU into UK law, we must ensure that animal welfare is preserved at all costs. It is also important that high UK animal welfare standards are not undermined by cheaper imports produced to lower standards, as has already been referred to.

Whether it be the family pet pig that is coming for slaughter or a large herd of sheep, the way in which we treat animals says an awful lot about us as a caring society. In leaving the EU under Brexit we must preserve those principles of our culture which define us as a country. We will have a long time to regret it if we do not. I look forward to the Minister’s response to the issues raised in this debate.

Photo of Lord Wigley Lord Wigley Plaid Cymru

My Lords, I have my name to Amendment 30, which I will address in a moment, but before doing so I turn to the comments of the noble Baroness, Lady McIntosh. I am not sure whether she or other noble Lords heard the programme on Radio 4 at lunchtime yesterday about the problems ports in the Netherlands face taking the steps needed to meet the 29 March deadline next year in due time. What came out of that is that it patently is not going to happen. It is not just that the resources are not available—there will be questions of resources and who pays for them, hence some of the duties that will be forthcoming—but it is a question of actually getting qualified vets. There are just not enough to do the job and there is no prospect of finding enough by the deadline, so it is not going to happen in that way. The reality of the situation facing us, and facing our partners within the EU, is starting to come home to roost.

I listened to the intervention a moment ago by the noble Lord, Lord Hain, on Northern Ireland. The mind boggles at the idea of vets chasing animals roaming around their own farm across the border. That is totally impractical. If we then say, “We accept that there will be an agreement between the north and south of Ireland with regard to the movement of animals that may be different to the relationships with the UK”, the question arises of the ports in the UK that will be taking these in. In any case, as the noble Baroness, Lady McIntosh, said, food coming in from the third world will need to be inspected. The thing just defies credibility.

Photo of Lord Deben Lord Deben Conservative 5:15 pm, 5th March 2018

I am sure the noble Lord is aware that there is only one vet in an abattoir who is not a national of the rest of the European Union. So this is not a small issue. He might think vets are going to run around chasing animals but it is much more likely that there will be no vets to run around chasing anyone.

Photo of Lord Wigley Lord Wigley Plaid Cymru

Absolutely—I accept that entirely. I was painting the picture that had been depicted by the noble Lord, Lord Hain, in order to illustrate how ludicrous the situation is. The noble Lord is right with regard to the backgrounds, the national origins, of a very large proportion of the vets that we have; we just do not have enough now. If the demand is going to be that much higher, the problem is going to grow out of all proportion.

I turn to Amendment 30, to which I have my name, to support the comments made by the noble Baroness, Lady Jones. I support the amendment, which probes the surprising situation that the Bill does not include provision to carry into UK law the principle of Article 13 of the Lisbon treaty recognising animals as sentient beings. Of course animals cannot be put on a pedestal alongside human beings, but they are clearly sentient, as the noble Baroness said. No one who has had anything to do with the countryside or with animals would deny that possibility, so the question arises as to why we are deliberately excluding this. Alarm has been raised among animal lovers as the Animal Welfare Act 2006 does not fully cover this, if we had to resort to that direction.

In the other place, the Government gave an understanding that they would consider how this could be rectified. I would be glad to know what their intentions are. I am not sure whether they are in a position to do so, but I suggest that an amendment should be put into this Bill to give MPs another bite at the cherry. However, if the Government are relying on the draft legislation that I believe they introduced on 12 December to cover this point, a response to the draft Bill was due in by 30 January, as I understand it, but there is still considerable dispute about the appropriateness of Clause 1. We in the Committee have a right to know what the Government’s intentions are on that, and whether the provisions that they are trying to make in that direction will meet some of the points raised by the amendment.

The other aspect that I wish to address is that EU laws on animal sentience have allowed Wales—the National Assembly and the Welsh Government—to take a lead on certain animal safeguarding matters. I remember that when my own party, Plaid Cymru, was in coalition government in the National Assembly from 2007 to 2011, we were able to introduce legislation to ban the appalling electric shock collars that had been used. Can the Government give an undertaking that, when these powers are repatriated from Brussels, the National Assembly and indeed the Scottish Parliament will retain the competence that exists under European provisions in order to take the sort of steps that I have mentioned in relation to electric shock collars and, indeed, a range of other animal well-being provisions? Can we be assured that these powers will not be centralised to Westminster, thereby imposing on to Wales and Scotland a straitjacket that may constrain their ability to act in a positive manner on these important matters?

Photo of Lord Deben Lord Deben Conservative

My Lords, I declare an interest as the owner of a few Red Poll cattle, which are the local cows of my part of Suffolk. I also was one of the longest-serving Ministers of Agriculture, and this is a matter of very great importance to me. I hope that my noble friend the Minister will realise that he is asking of us, if he does not accept these amendments or agree to do something about this issue, three things, and none of them seems to me acceptable.

The Minister is asking us to accept that, when the Government promised that the withdrawal Bill would take into English law all that is at the moment in European law, and that we would start again from there, that is not the case with sentient animals. The noble Baroness, Lady Jones, explained that very clearly. There are two ways in which it does not. First, it is not complete—and the Government accept that, because they had very urgently to rush forward the advice that they were going to be produce a sentient animal Bill to overcome the gap in this Bill. Will my noble friend explain why it is not in the Bill? It is a real issue. If the whole purpose is to use this Bill to ensure that the law after we leave, if we were to leave the European Union, will be the same as before, why is there this exception? It is very important for my noble friend to answer that question because he has in the past, when I have asked him other questions, told me that it is not about the withdrawal Bill, that it is a different issue and comes up elsewhere. This is clearly about the withdrawal Bill—the issue is clearly missing and it ought to be here. My questions are, “Why isn’t it here?”, and whether he will undertake to include it.

We are also supposed to accept that there will be a Bill that will cover this issue. That is a difficult thing for this House because we know very well that, with the best of intentions, the Government do not have a great deal of time to bring in these Bills, and certainly not before the self-imposed end date that they insist upon. Therefore, are we supposed to rely not only on the Government’s good faith, which I am sure I can, but on their ability to deliver on time—otherwise there will be a gap when this protection is not afforded.

No doubt my noble friend will say that we will work all that out in the negotiations, but these negotiations are likely to take place after the due date on which we would leave, if we leave the European Union. What is more, clearly, it is not going to be left to the negotiations, because he has already told us that we are going to have a sentient animal Bill—so it is not just a matter of the negotiations. Not only are we supposed to accept that this is outside the Bill, even though that is the Government’s fundamental proposition about the Bill; we are also supposed to accept that they will be able to bring forward legislation that will cover this matter in time for there not to be a gap, which is unconnected with the negotiations because otherwise we would not need to have that until after the negotiations, in which case we could merely take it into our law.

I am afraid that this is very complex and, worse than that, we have before Parliament a Trade Bill. It is clearly the Government’s intention not to restrict their future trading arrangements to ensure the high standards of animal welfare that I spent quite a lot of my life arguing about in the European Union and working for in this country. Those standards are not enshrined in the Trade Bill. There are no arrangements in that Bill for this House to discuss, or to have, in any sense, an influence on, trade negotiations and agreements. We are, therefore, fixed into a position in which we have to accept that this omission from the arrangements of the withdrawal Bill is accidental—it is of no importance and will be covered by another Bill. We also have to accept that there will be another Bill and that it will be in time. What is more, we are to accept that what is in the other Bill will cover this issue. As we know, it has, in the words of the noble Baroness, Lady Jones—I would not like to use the phrase myself but I can repeat it—“been rubbished” by the Select Committee which looked at it. It does not actually do the job.

The Trade Bill will not give any protection for animal welfare, so that our farmers, who meet high standards, will have to accept imports from elsewhere which do not meet them. The argument about chlorinated chicken—I know that phrase has been ridiculed but it is useful—becomes very strong. I hope your Lordships are aware of why the words “chlorinated chicken” are so important. The United States has to chlorinate its chickens because it does not have high welfare standards and unless you chlorinate them you have even more food-borne disease than America has now. It has at least four times the food-borne diseases that we have in Europe. This is no passing comment; it is a fundamental issue of the health of the British people, leave alone the issues of sentient animals.

I am sorry that there is more to say—but this is a very serious area. The Government seem to have misunderstood the way in which you take EU laws into British law. EU laws have always to be read in their context, inside the protocols which make those laws operate. The trouble with this particular bit of the withdrawal Bill—as indeed with much of it—is that when you take the bare bones and put them into English law, you lose that context. You really do have to find a way of getting the context in, otherwise the bare bones do not have the same effect as they do at the moment in the application of EU law.

There is another thing that I find difficult with the Government’s willingness to discuss this issue in such a peculiar manner. I can understand my noble friend, and other Ministers at various times, recognising that some of us do not think that withdrawal is a very good idea. That is perfectly understandable, but we are not debating this on that basis. What we are doing is trying to make sure that the withdrawal Bill does what is supposed to do—and we are trying to do that as a House that has that specific duty and job. I know that the Daily Mail finds that hard to understand, but what we are here for is to ensure that the legislation that is passed is, in detail, what was intended. The House of Commons—the other place—is now less able to do that because of the way in which it restricts the time spent on these matters. I know that my noble friends would much prefer this House to spend less time on the Bill. But if we do not spend the time, no one else will go through it in the way that we will have to if this is not to be a disaster not just for animals but for human beings, because we will have none of the necessary restrictions.

The trouble is that it will be no good our coming back afterwards and saying, “You ought to have done this”. The Government will merely say, “You ought to have understood that at the time”. Well, I think that we do understand it; the people who do not seem to understand it are the Government. They do not seem to understand what you have to do if you want to leave the European Union but keep the laws in place. That is a serious matter. There are many other examples in the Bill, but I have chosen this one because it is more glaring than the others and because the public would be appalled to discover that the Government had failed to protect sentient animals and the health of the nation and to have taken a holistic view on this.

I will end on that point. Leaving the European Union—were we to do it—is a holistic activity. We will remove ourselves from the relationships we have had for more than 40 years and set up something entirely new. That is a holistic movement. Therefore, we have to think about what we do holistically. We cannot do a little bit and then a little bit more; we have to think about it in the round. My noble friend the Minister may say that I have missed the point and that the noble Baroness, Lady Jones, is right that we cannot tackle it in this way but he will come back with a proposal to do it differently. If he does that, I am prepared to apologise. However, if he does not do that, he will be asking us to accept that the withdrawal Bill has a large gap here, contrary to what the Government promised. That gap is not small or unimportant but very large—and it will affect the health of not only animals but human beings. This will be particular true on the border between the north and south of Ireland. I am ending on this point because I remember when we did not have the arrangements that we have now and when the United Kingdom Government had to try to stop the constant smuggling of animals across that border. We had a Minister who was known as the “Minister for Pig Smuggling”.

That is another thing that people forget. They forget the enormous advances we have made in bringing together the north of Ireland and the Irish Republic. I have rarely been as angry as I was when I saw extreme Brexiteers trying to ridicule the Good Friday agreement as if it did not matter. I say that as somebody who was caught up in the Brighton bombing and whose wife was caught up in it, and who had to help pick up things afterwards. I do not accept that these things should be treated with the sheer vulgar partisanship that we have seen from some Members of the House of Commons and people elsewhere. I am merely saying that the Government do not seem to have come to terms with that when it comes to the movement of live animals, the movement across that border and the whole question of what it means to withdraw from the European Union.

My noble friend must accept that this is no passing matter; it is not just a case of supporting animal welfare because it is so popular. I do not think that anyone has ever told me that I am sentimental about this. I take a very clear and hard line on it—but I also happen to be reasonably rational. What the Government are asking us to do is not something that the revising Chamber should dream of doing. We should insist on this being changed.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour 5:30 pm, 5th March 2018

My Lords, I congratulate the noble Baroness, Lady Jones, on introducing the amendment very clearly and effectively. I support it strongly. I also commend the speech of the noble Baroness, Lady Bakewell, who spoke straight from the heart. However, there was nothing at all sentimental or false about what she said; it was said straight from experience and was very matter of fact.

I too have the benefit of living in the country—I see it as a benefit, anyway—and I see many animals. I have cattle grazing on my land and I have a dog; I should declare that interest. I have many times been able to verify how intelligent these animals are, how sensitive they are and what an extraordinary relationship they can have with human beings. All of this is orthodox science. It was demonstrated by Pavlov or Konrad Lorenz and has been demonstrated over and over again, so I do not think there is any doubt about it. It has always seemed to me that caring about sentient animals is one of the marks of a civilised society. There is terrible cruelty to animals in this world. The situation is obviously worse in many poorer countries, for reasons one understands. I think that the European Union has probably the highest standards of anywhere in this matter—certainly far higher than the United States. I hope that we can keep things that way if we have to leave the European Union and that we will at least not resile from those standards. That is why I want to comment on what has just been said.

I am not sure that I have ever said this before, but I agree with every word that the noble Lord, Lord Deben, said in his excellent speech. That being the case, I might normally be tempted simply to record my agreement and then sit down. However, I have some slight hope that if I make similar points to those he made—it was my intention to make exactly the points he pre-empted me in making—but from a rather different perspective, and the Government hear a similar message from different parts of the House, they might for once consider whether there might be something in those points—and it would be very desirable indeed if the Government thought again about the matter.

The noble Lord, Lord Deben, made a couple of very important points. I will not follow him on Northern Ireland as we shall have other opportunities to debate that in the course of our proceedings, and I look forward to taking part in those debates. The noble Baroness, Lady Jones, made it very clear that the Government clearly intend that there should be protection for sentient animals in our legislation, but not to the same high standard that applies at present. Over and over again—countless times—we have heard in these debates that the Government’s only intention in bringing forward this Bill is to transpose Union law into British law so that there is no legal vacuum or legal confusion if we leave the European Union. We understand that that is a perfectly reasonable and logical response to the situation and I think that most of us on this side of the House want desperately to take the Government’s words in good faith.

However, over and over again we find that that is not true, that there is a surreptitious agenda and that rights and protections which exist by virtue of our membership of the European Union are not being carried forward and that the Government appear to have no intention of carrying them forward into domestic law after Brexit. The noble Baroness, Lady Jones, made this absolutely plain and cited the Government’s proposed wording to replace the article in the Treaty of Lisbon on animal welfare. It is quite clear that the Government want to weaken that language. Why do they want to do that? I had always thought that there was a consensus among civilised, humane people on the protection of animals which went across this House and the other place and had nothing at all to do with political parties. Is that not the case? Why should the Government therefore decide in this case not to carry forward into British law the existing levels of protection in the Treaty of Lisbon but to deliberately reduce them and dilute them? Why is that? I cannot understand it.

Secondly, on another point made by the noble Lord, Lord Deben, there should be no illusion about this matter as regards international trade. If we are serious about animal welfare, we must impose exactly the same standards that we impose on our own farmers in this matter on any imported animal products, otherwise we will make complete fools of ourselves without any gain to animal welfare at all. All that will happen is that the business will go to farms in other countries which apply appalling standards of animal protection or none at all and who therefore have an economic advantage and can undercut the British farmer with produce that is produced in barbaric fashion. I include in that the way the Americans produce their beef, which is absolutely revolting. They now have zero grazing for over 95% of their beef, which means that you have two animals in an area slightly smaller than the Table in front of me. They never see the air or a blade of grass in their life. That is appalling but it undoubtedly gives the Americans an economic advantage.

Photo of Viscount Ridley Viscount Ridley Conservative

The noble Lord is repeating a point he made last week about American agriculture. I let it pass then, but on that occasion he said that if you go to Texas, there are no cattle outdoors, and that you would not see a lot of Texas longhorn outdoors. I go to Texas quite regularly and see an awful lot of cattle being raised outdoors. The noble Lord should be careful not to exaggerate what is happening. I do not know what relevance this has to EU withdrawal, but it is important not to go too far in this respect.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

I will come to the relevance to EU withdrawal in a moment. I will just say that I feel that I have not lived in vain, because the noble Viscount has listened to what I said and thought about it for several days. I was perhaps speaking figuratively; in this life you can never apply the word “infinity” or “zero” in a completely literal sense. He may have been to the wrong part of Texas, or to parts where there are expensive ranches and the oil billionaires who own them like to have some longhorn on display. Those ranches exist, and I have seen one or two of them. Perhaps the noble Viscount has some friends who invited him there. That is not the heart of the beef economy. If the noble Viscount knows anything about Texas—he obviously does—he will know that Fort Worth used to be the centre of the Texas meat industry. I used to go there very frequently because I had a lot of dealings with Lockheed Martin, which is based there. I went there at different times of the year and I got to know the countryside around Fort Worth and towards Dallas quite well. That would have been cattle country 100 years ago; there would have been cattle on every horizon. I have literally never seen a single live animal in the area around Fort Worth, which was the headquarters of that industry. That is not a part of the United States where wealthy people have ranches with animals on display, which is a very different matter.

The point I was making—I will not say before I was interrupted, because I was pleased to have the intervention from the noble Viscount, particularly if he has been listening to my speeches carefully—was that there is no point in having any kind of regard to animal welfare and persuading ourselves that we are being humane and civilised in doing so if we then let in, in our imports, meat or other agricultural products which derive from inhuman practices. All we are then doing is making sure that the business and the activity moves from this country abroad with not a single iota of gain to animal welfare or happiness, and causing the destruction of the British livestock industry in the process. That makes no sense.

If we are to do this, we have to do it properly. We should make it a matter of moral commitment that when we leave the European Union—if indeed we do—we stick to the high standards which the European Union has set in this matter and certainly do not dilute them, and secondly, that we ensure that we impose those standards if we have left the European Union and are in a position to sign free trade agreements with other countries. I have explained why I think it is unlikely that we will be in that position in practice with the United States, but supposing that we were, we should in that eventuality impose exactly the same standards on anybody who wants to sell us meat or other agricultural products in future.

Photo of Lord Bowness Lord Bowness Conservative

My Lords, noble Lords will be pleased to know that I will be brief. I put on record my support for Amendments 30 and 98, and for the sentiments expressed by my noble friend Lady McIntosh of Pickering. I cannot imagine what good reasons there can be for opposing this amendment. I appreciate that a number of directives and regulations will be incorporated into our law, but not this important treaty provision. As other noble Lords have already said, a hallmark of a civilised country is how one treats one’s animals, and recognition of animal sentience is key to that.

I do not think that there is any dispute between those of us who support the Government’s amendment on that point. Immediately after the other place voted down the amendment very similar to the one we are discussing, the Government rushed to introduce a draft Bill to bring the concept of animal sentience into our domestic law. We have heard that the consultation ended in January, we have heard the views of the Select Committee in the other place, and we know that the Bill leaves much to be desired. We would therefore like the Minister, as the noble Lord, Lord Wigley, said, to tell us at what stage we will hear the Government’s consideration of the responses and the committee’s response, and, more importantly, when a Bill—not a draft Bill—will be introduced. At the time the amendment was voted down, the Government’s position appeared to be to reject as much as possible of anything derived from the European Union. But now, as all the problems of withdrawal are belatedly beginning to be recognised—we are now prepared even to participate in agencies and pay for the privilege—we can perhaps take a different view on matters of this kind.

To accept this amendment would cost nothing. As far as I can see, it needs no negotiation: we can take it on board now and build on it in future. Whether it be in the draft Bill, a revised draft Bill or another Bill, I know not. However, I know, as my noble friend Lord Deben, mentioned, that the future may be some way away, given the legislative pressures there will be on Parliament to deal with the withdrawal agreement Bill, the Bill on transition or implementation—according to your preference—to say nothing of the fishing, immigration and agriculture Bills. I accept that the Government are committed to high standards, but under pressure, amendments may be overlooked and mistakes made.

As a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House, in April 2016 I saw, with the rest of the committee, that the Government were seeking to repeal the catchily-named Code of Recommendations for the Welfare of Livestock: Meat Chickens and Breeding Chickens 2002 and wanted to replace it with an industry-led, voluntary code of practice. Fortunately, they had a change of heart, despite resistance and objections from the industry, and have now introduced a new statutory code, which comes into force later this month or is already in force. I draw from that the conclusion that one cannot be too careful, even if you accept the good intentions of government. I suggest that the amendment should be accepted; we have nothing to fear from it, and it will keep the Government focused on the issue in the long term as the future of EU directives and regulations becomes, in time, more and more uncertain. I hope that the Minister will feel able to accept the amendment and, if not, since the Government intend to do it—as witness their draft Bill—why not?

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Liberal Democrat 5:45 pm, 5th March 2018

My Lords, I add my support to this important amendment, which has received widespread support from around the House. Noble Lords have rightly concentrated on farm animals because of the implications of the trade Bill—I associate myself with the wise remarks of the noble Lord, Lord Deben. However, let us remember that the animal sentience directive applies not only to farm animals but to all animals: wild animals, companion animals, working animals and lab animals. If we did not accept it, it would be a major step backwards. This House will remember that the Animal Welfare Act 2006 was a major step forward, but it was quite controversial and took a lot of time to go through both Houses. That is one reason why I am particularly surprised at the Government wanting to spend lots more time on animal sentience—time which we know Governments rarely have. As other noble Lords have said, they could simply include it in this Bill and avoid all that time being taken up.

So the question I ask myself is: what loopholes are the Government hoping to create for themselves in their Bill? There must be some reason why they do not want to put provision firmly into this Bill. Those suspicions fuel public anger when people realise that the Government are resisting an amendment of this sort.

Photo of Lord Teverson Lord Teverson Chair, EU Energy and Environment Sub-Committee

My Lords, my noble friend Lady Bakewell was absolutely right to talk about Britain as a country of nature and animal lovers. I remember that one of the first things to happen when I became an MEP in the mid-1990s was that I received a sackful of mail about live animal transport. The Rwandan genocide was taking place at the same time but I received no letters whatever about that, despite the EU’s role. I relate that story only to show that I am in no way sentimental about this issue, but I completely support Amendment 30 in particular because I can see no reason why we should not include it in the Bill.

I chair the House’s EU Energy and Environment Sub-Committee, which covers agriculture. During an inquiry into Brexit and animal welfare, one thing that clearly came out was the trade issue, which a number of noble Lords have referred to. At that time—and I really do not see things as being very different now—it seemed to everyone on the committee that there was a schizophrenia within government. On the one hand, Defra was saying that high animal welfare standards would continue after Brexit. One obvious point to make about this amendment is that it does not in any way constrain our Government from increasing welfare standards after Brexit. It would not get in the way of that, so that is no reason to resist it. On the other hand, the Department for International Trade was very gung-ho in fulfilling its mission of getting free trade agreements throughout the world more or less as part of the Brexit dividend—agricultural trade being an important part of that.

Two other things came across during our inquiry. One was that no one in the industry resisted retaining the current EU and UK animal welfare standards and legislation—no one wanted to reduce them. The other was that WTO rules are very unclear in this area. There is no guarantee in trade agreements that you can prevent trade happening. Whether under WTO rules or under FTAs, there is no guarantee of enforceable animal welfare clauses. The example given was the EU’s resistance to accepting North American hormone beef. The EU effectively lost the case on animal welfare and has to provide compensation to the United States for that restriction. Therefore, this is an area where I still see a fundamental difference within government—between Secretary of State Liam Fox and Secretary of State Michael Gove. I do not see that as resolved, and that is why this proposed new clause has to be included in the Bill.

I have a question for the Minister. In her speech last week, the Prime Minister mentioned remaining a member, or an associate member, of the European Aviation Safety Agency, the European Medicines Agency and the European Chemicals Agency. I did not see this mentioned in her speech but is it the Government’s intention to try to remain an associate member of the European Food Safety Authority and, as part of that, the Panel on Animal Health and Welfare? This is viewed as one of the most authoritative and excellent organisations in that area but, by not being an associate member of the European Food Safety Authority, we will no longer be a member of or an influence on that panel.

This amendment is fundamental. The Government can gain only praise by accepting it, and I hope that they will do so.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

My Lords, I wish to speak to my own amendment in this group, as well as supporting the other amendments in the names of the noble Baronesses, Lady Jones and Lady McIntosh.

On animal sentience, the noble Baroness, Lady Jones, rehearsed the background to the amendment and other noble Lords have done so too. Animal sentience is an important underlying principle. It comes from Article 13 of Title II of the Treaty on the Functioning of the European Union, which states clearly that animals are sentient beings. It is therefore very important that this principle is transposed into UK law. However, as we have heard, when the Greens, Labour and others fought for amendments in the Commons to enshrine this principle in the Bill, it was voted down by the Conservatives. I hear the voices of some Members opposite who still do not quite understand why that happened; we, too, do not understand why they took that decision.

There was then an immediate backlash, not only from animal charities but from animal lovers around the UK. The noble Baroness, Lady Bakewell, gave us a flavour of how passionate people are—quite rightly—not only about the countryside but about their personal interconnection with animals and about how important animals are to them. All those arguments have been made very well.

Effectively, the Secretary of State realised that his reputation was about to be trashed and he decided that there would be a process of damage limitation. His solution was to announce that the original amendment was not well drafted and that a separate Bill on animal sentience would be produced. A draft Bill has now been produced and it bears all the hallmarks of a rushed job. Apart from anything else, it combines two distinct issues: increasing sentences for animal cruelty—something that has been in the pipeline for some time—and attempting to define animal sentience. As the noble Baroness, Lady Jones, pointed out, it is therefore not surprising that the Commons Environment, Food and Rural Affairs Committee produced a scathing pre-legislative scrutiny report on it. The noble Lord, Lord Deben, queried whether he could quote the noble Baroness as having rubbished it. It is fair to say that the committee did rubbish it. It said that the Secretary of State should go back to the drawing board and that animals,

“deserve better than to be treated in a cavalier fashion”.

It also recommended that the separate bit of the Bill on animal cruelty should go ahead as planned and that much more thought should go into the Government’s vague and ambiguous reforms around animal sentience.

We agree with that analysis. We would be happy to work on the animal sentience Bill to make sure that we get it right, but then of course it has to take its place in the queue of Defra Bills that have already been promised within the next year—a point echoed by other noble Lords. Bills on agriculture, fisheries and the environment have already been promised. Most are in draft form, although some are not even at that stage, and they all have to be delivered within the next 12 months or so. This one would have to take its place in that line of legislation, not to mention all the other EU withdrawal Bills also currently in the pipeline.

It is a bit of a stretch to think we will ever get to a separate animal sentience Bill, so we come back to the amendments on animal sentience before us today. Our belief is that amendments of this nature are necessary to provide a guarantee of the transposition of EU rights for animals, which the Government have promised. Again, I thought that the noble Lord, Lord Deben, made that case very forcefully. Ultimately, this is a simple process, which can be accomplished by a simple amendment. If we can find better wording than that which we have put forward, that is absolutely fine; that is the purpose of Committee stage and we would be happy to hear the Minister’s suggestions on that. We would then welcome the chance to work on a more thorough animal sentience Bill, which would take into account the concerns of the Environment, Food and Rural Affairs Committee and reflect the latest scientific evidence on how animals experience pain and suffering—a lot of new research is coming forward on that issue, of which we need to take account. Today, the task before us is to ensure that all existing EU law is transposed appropriately. We believe a simple amendment of the kind we have put forward would achieve that purpose.

On a separate issue, we also welcome Amendment 212, which relates to the transport of live animals across borders and requires that animals being brought into the UK comply with UK welfare standards, even where those standards are higher. The noble Baroness, Lady McIntosh, made a powerful point about live animals crossing the Irish border. Again, this is an issue we have rehearsed here a number of times. The Irish border remains an unresolved challenge that has to be addressed, of which the transport of live animals is one part, but we all know that the issue is much bigger than that. Although we agree with the wording of the noble Baroness’s amendment, she also raised the broader issue of the continuing transport of live animals. We do not necessarily see eye to eye on that, but it is a matter for another day because it is not specific to the amendment before us. However, the Minister might want to comment on it.

As we have heard from around the Chamber, there are huge challenges around the movement of livestock from outside the EU. Noble Lords have raised all sorts of practicalities: for example, we have heard about the lack of vets, with virtually all vets in abattoirs being EU nationals; and about the import of US beef that is full of hormones, and of chlorinated chicken, which disguises the poor welfare standards that they have in the US. This is not just a US issue but, as we know, a global issue. We take pride in our own current high standards of welfare and it is absolutely right that we should maintain them.

A number of the issues raised by noble Lords fit into other Bills, such as the Trade Bill and the subsequent migration Bill. They also fit into other Bills about the governance and environmental standards that we have been promised. For example, we would say that we need a statutory animal welfare body that makes sure our best animal welfare standards are maintained, and it is important that that is put in a separate bit of a separate Bill. The point made by the noble Lord, Lord Deben, is absolutely right: we need a holistic approach to all this. Lots of these issues relate to separate Bills, but that does not mean we should not deal with the amendments to this Bill today. If they need to be cross-referenced with other legislation that comes on stream later, we may have to do that to make sure all passes are covered.

These amendments are important and we hope that the Minister has heard the strength of feeling from around the Chamber on these issues. By far the easiest thing to do is to adopt the amendments that we have proposed or some similar wording, on which we are happy to take advice. I hope the Minister sees the sense of this position and is able to support the amendments in this group.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour 6:00 pm, 5th March 2018

Does my noble friend agree that the excuse that the Government cannot accept this amendment because another Bill may be coming along on the same subject cannot be accepted as genuine? If the Government do bring forward another Bill on this subject, there is absolutely nothing to stop them, if they so wished and if Parliament agreed, modifying the amendment as it is incorporated in the Act.

Photo of Baroness Jones of Whitchurch Baroness Jones of Whitchurch Shadow Spokesperson (Environment, Food and Rural Affairs)

That is our position: we should have this amendment now but work on it in the longer term. I am sure we could all find ways of improving it. The easiest and most honourable thing is to transpose what was in the treaty and move that wording over, then move on to something better for the longer term. I agree with my noble friend.

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

My Lords, this has been an excellent debate and I thank all noble Lords who have contributed to it. I start by directly addressing the question put by the noble Baroness, Lady Bakewell, the noble Lords, Lord Wigley and Lord Davies, my noble friend Lord Bowness and others. There is no question but that this Government regard animals as sentient beings. As we said on this issue in the other place, we certainly agree with the sentiment of the amendments, such as that of the noble Baroness, Lady Jones of Moulsecoomb. However, as I will set out, we cannot support them.

Article 13 of the Treaty on the Functioning of the European Union, to which many noble Lords have referred, places an obligation on the European Union and EU member states when formulating and implementing certain EU policies to have regard to the welfare requirements of animals because animals are sentient beings. However, the weakness of that article—this relates directly to my noble friend Lord Deben’s point—is that it applies only to a limited number of EU policy areas and, even then, allows for certain religious and cultural traditions which many would consider to be cruel. Two examples, of course, are bull-fighting and the production of foie gras. Article 13’s effect on domestic law is minimal. As the Secretary of State for the Environment has made clear, as we leave the EU, we believe that we can do much better.

We have made it clear that we intend to retain our existing standards of animal welfare once we have left the EU, and, indeed, to enhance them. This Bill will convert the existing body of EU animal welfare law into UK law. It will make sure that the same protections are in place in the UK and that laws still function effectively after we leave the EU. However, the purpose of this Bill is to provide continuity by addressing any deficiencies in law as we leave the EU. It is not about improving EU laws that the Government think could be better. That is why, at the end of last year, the Government published draft legislation, the Animal Welfare (Sentencing and Recognition of Sentience) Bill, to which a number of noble Lords have referred. The draft Bill sets out how we can better enshrine in domestic law the recognition of animals as sentient beings.

Let me reply to the questions asked by my noble friend Lord Bowness and the noble Baroness, Lady Jones. The Secretary of State for the Environment has been clear that we will legislate and that there will be no gap left in our law on sentience after we leave the EU. We believe that the draft Bill is a significant improvement on Article 13, imposing a clear duty on the state to have regard for animal welfare when considering all policies, rather than just the six areas outlined in Article 13.

Photo of Lord Deben Lord Deben Conservative

My noble friend has said that the reason we are not including that part of the article which is excluded is that it does not go very far and it is not good enough, but that is not what the Government promised. The Government said that they were going to include in this Bill all the present legislation. That is all we ask. Why will he not include even so deficient a piece as this and then do the additions afterwards, which is what he has told me he is going to do on every other occasion?

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

Because we do not think that Article 13 works in the context of UK law; it applies only to EU law. I have set out why we think we can do better.

The public consultation on the draft Bill closed on 31 January. The Government are analysing the responses and will publish a summary and next steps in due course—I hope before we get to Report. I hope this reassures the noble Baroness, and indeed my noble friend Lord Deben, about the Government’s firm stance on animal sentience.

Photo of Lord Wigley Lord Wigley Plaid Cymru

The Minister emphasised that he hoped this would be brought forward by Report. If it is not, would he be prepared to look at an amendment along these lines to meet the Government’s shortcomings and ensure that the Bill covers the possibilities we have outlined in the debate, rather than relying on the possibility of future legislation that may not reach the statute book?

Photo of Lord Callanan Lord Callanan Minister of State (Department for Exiting the European Union)

I do not want to give the noble Lord an exact commitment but, as I have said, we hope to have it by Report stage. If that is not the case we will look at what can be done in its place.

Amendment 30 seeks to transfer the obligations contained in Article 13—to have regard to the welfare requirements of animals as sentient beings when developing and implementing certain EU policies—to domestic law. Unlike Article 13, however, the amendment applies only to the formulation rather than the formulation and implementation of law and policy. Furthermore, once the UK has left the EU we will obviously no longer be a member state and therefore no longer formulate or implement any EU laws or policies. Therefore, by referring to the obligations contained in Article 13, it is not clear what the effect of the amendment would be in practice. Although it is assumed that its intention is to require the welfare requirements of animals to be taken into account in formulating domestic law and policy, it appears that the amendment would only require it when formulating and implementing EU policy and law, which of course we would no longer be doing. As I have said, the Government have published a draft Bill which introduces a clear duty on Ministers to have regard for animal welfare when formulating and implementing all government policy and not only the six areas I mentioned earlier.

Amendment 98, tabled by the noble Baroness, Lady Jones of Whitchurch, seeks to apply the requirements of Article 13 to the use of Clause 7. It would require Ministers to pay full regard to animal welfare requirements when introducing any legislation under Clause 7. I remind noble Lords that the purpose of Clause 7 is to allow the Government to address deficiencies in retained EU law arising from our withdrawal. Clause 7 provides powers for Ministers to make secondary legislation to deal with any problem that would arise on exit—for example, to remedy any provisions that would have no practical application after the UK has left the EU.

However, the power is temporary and can only be used for up to two years after exit. After that point it will expire. Similarly, the proposed amendment to Clause 7 would only have effect for two years from the date of our withdrawal from the EU. The amendment would also only apply to those regulations introduced by Ministers before March 2021 for the purposes of addressing deficiencies arising from our withdrawal. Therefore, the limited protection provided for animals by the amendment would also expire on 30 March 2021.

The amendment would not hold Ministers to the standards required in Article 13 two years after we have left the EU and, therefore, would weaken the current obligation in Article 13. The provisions set out in our draft Bill in December go beyond the two years following our exit from the EU and will apply to more than just those regulations that deal only with any deficiencies arising from the UK’s withdrawal from the EU.

The purpose of Amendment 212, tabled by my noble friend Lady McIntosh of Pickering, appears to be to require the Government to negotiate an agreement with the EU on the importation of live animals from the EU regardless of where the animals originate. It further seeks to ensure that any such agreement requires imported animals to have been raised and kept in accordance with UK welfare standards. I can reassure noble Lords that there is no need for such an amendment as the Government are already seeking to ensure that our high welfare standards are maintained. The Bill will transfer to the UK statute book all EU food safety and animal welfare standards. Our current high standards, including import requirements, will apply when we leave the EU.

Further, a system whereby we would need to check every single animal imported into the UK to ascertain the conditions under which it had been kept prior to import would be extremely difficult to enforce and extremely costly to administer. The Government are proud of the high food safety and animal welfare standards that underpin our high-quality Great British produce and we have no intention of undercutting our reputation for quality by lowering our food and animal welfare standards in pursuit of any trade deal. We have some of the highest animal welfare standards in the world and the Government have made it clear that we intend not only to maintain but to enhance these standards as we leave the EU.

My noble friend Lady McIntosh and the noble Baronesses, Lady Bakewell, asked me about the Food Standards Agency. Defra is working closely with the FSA to ensure that the food safety regulatory regime remains robust as the UK leaves the EU. The number of new checks post-exit for EU imports into the UK of live animals, and therefore the staff needed, will depend on the outcome of the negotiations. I thank the noble Baroness for raising that point.

The noble Lord, Lord Wigley, asked about the devolved Administrations. I can assure him that the National Assembly for Wales will retain all the powers it currently has to implement animal welfare legislation. We are discussing with Ministers in the devolved Governments of Wales, Scotland and Northern Ireland whether or not the animal provisions in our Bill should apply to them.

The noble Baroness, Lady Bakewell, asked about the number of vets at the point of slaughter. We recognise the key role that veterinary surgeons from the EU and the rest of the world have played in maintaining public health and animal welfare both within our own government service and within the wider veterinary service. UK law requires that official vets be in attendance at slaughter houses, and this will not change post exit.

It is important that consumers have confidence in the food they eat, and this will not change when we leave the EU. There are a number of possible measures which could be adopted and the issue is under active consideration.

I hope I have provided assurance to the noble Baroness and that she will feel content to withdraw the amendment.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 6:15 pm, 5th March 2018

My Lords, I thank the Minister for his response and all noble Lords who have contributed to the debate. I would like to offer them all a hug but I fear I might be infringing HR regulations. I am aware that the Whips have been looking anxiously at the clock and I shall try to be brief.

The amendment would not change anything that exists in the UK at the moment—it is merely a safeguard. If the Government bring forth a Bill I will be incredibly supportive. I am not saying this is the best option for animal protection but it is as good as it gets. It is the best we have at the moment and I certainly do not want to see any worse protections.

Chickens have already been mentioned. I would like to add that mastitis is common in the States—it is an infection of the udder, which means that the milk produced has a high level of pus in it. Americans consume a lot of pus in their milk because of the way their animals are farmed. The noble Viscount, Lord Ridley, might have seen cows with sore udders in Texas. We cannot have this in our country and the British public would not allow the Government to drop our welfare standards. If the Government are going to bring forth a Bill, fantastic—but in the meantime let us have the amendment to keep things as safe as possible.

I hope the Government do not come back to your Lordships’ House with a fudge. Many noble Lords are more knowledgeable about this issue than I am, and it would not be accepted. It is a mistake for the Government not to say, “We will have this until we can do better”. If they did, I would support them. I would love to not withdraw the amendment but, with your Lordships’ permission, I will.

Amendment 30 withdrawn.

Clause 5: Exceptions to savings and incorporation

Amendment 31

Moved by Lord Pannick

31: Clause 5, page 3, line 11, leave out subsections (1) to (3)

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, Amendments 31 and 33 arise again out of a report from your Lordships’ Constitution Committee. They are in the names of four members of that committee, the others being the noble Baroness, Lady Taylor of Bolton, and the noble Lords, Lord Norton of Louth and Lord Beith. In the same group I have tabled Amendment 31A.

These amendments address the inclusion in the Bill of the principle of the supremacy of EU law. Noble Lords will know that under the European Communities Act 1972, EU law takes priority over any inconsistent domestic legislation or rule of law. That is why the Merchant Shipping Act 1988 was disapplied in the Factortame case to the extent that it was inconsistent with the EU law rights of Spanish fishermen.

Since the purpose of the Bill is to read across the substance of EU law as at exit day and so secure continuity, the Constitution Committee recognises the need to maintain the priority of retained EU law over laws that were enacted or made prior to exit day. The scheme of the Act is that any future Act of Parliament will take priority over retained EU law. Our objection is to the Bill using the term, the “supremacy of EU law”. We point out in Chapter 5 of our report:

“The ‘supremacy principle’ is alien to the UK constitutional system”,

not only in its origin but also in its content. In our constitutional law, Parliament has supremacy and we think that it is very unsatisfactory that the Bill chooses to implement legal continuity by maintaining a legal concept, the supremacy of EU law, which leaving the EU is designed to abolish. If it is possible to avoid the use of the concept of supremacy for the application of our law after exit day, that would be preferable.

It is also difficult to see how Clause 5(3) advances the objective of legal certainty. To make the application of the concept of supremacy dependent on,

“the intention of the modification”,

seems to the Constitution Committee to invite uncertainty. I would be grateful if the Minister can explain how subsection (3) is intended to apply in practice. Amendment 31 would simply remove the provisions relating to supremacy and it needs to be read with Amendment 33, to which I will turn in a moment.

Another approach is offered by Amendment 32A. It would be much more consistent with British legal principles for Parliament simply to enact, as Amendment 32A suggests and as Professor Paul Craig of Oxford University has suggested—I gratefully adopt his scholarship—a provision that if, on or after exit day there is any inconsistency between retained EU law and an enactment made or a rule of law enforced before then, priority shall be given to the retained EU law.

Whether Clause 5 should use the concept of the supremacy of EU law is linked to another fundamental issue raised by this group of amendments. The Constitution Committee has advised your Lordships that one of the defects of the Bill is that it fails to accord a defined legal status to retained EU law. That is the focus of Amendment 33. The Bill as currently drafted does not say whether the retained EU law is to be treated as primary legislation, as secondary legislation or as something else; and if so, what? The Bill ignores the problem save in paragraph 19 of Schedule 8 which tells us:

“For the purposes of the Human Rights Act 1998, any retained direct EU legislation is to be treated as primary legislation”,

meaning that it cannot be disapplied by the courts but can be made the subject of a declaration of incompatibility. Our objection to paragraph 19 is that it begs a question: if retained direct EU legislation does have the status of primary legislation for the purpose of the Human Rights Act, does that mean that it does not have that status for any other legal purpose? The Constitution Committee advised in paragraph 51 of its report that the Bill will give rise to confusion and uncertainty about the legal status of retained EU law by failing to address this issue clearly and consistently.

The Bingham Centre for the Rule of Law has agreed with our concern that the Bill should confer a defined legal status on retained EU law. The centre has explained that individuals and businesses need to know about the status of one rule relative to another because the question of hierarchy is determinative of a number of legal questions. Which rule takes priority if there is a conflict between them? On what grounds may the content of a legal rule be challenged? What remedies are available if the legal challenge is successful, and what process must be followed if the rule is to be repealed or amended? Even worse, in the opinion of the Constitution Committee, the Solicitor-General told us in his helpful evidence that the Government would, if necessary, use the powers conferred in Clause 17 to make provision themselves to determine the legal status of particular retained EU laws for specified purposes. The report is very clear about that in paragraph 69:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.

We added that for the Bill to say nothing about legal status but to allow Ministers to determine the status of particular retained EU law for particular purposes is,

“a recipe for confusion and legal uncertainty”.

Amendment 33 would implement the recommendation of the Constitution Committee by conferring on retained EU law the status of primary legislation enacted on exit day. The simplicity of that approach is that it would ensure, by a means entirely conventional on domestic legal principles, that retained EU law would take priority over previously enacted legislation, as the Government intend, but it would give way to legislation enacted after exit day—again as the Government intend. Another advantage of treating all retained EU law as primary legislation is that it would not be capable of amendment under existing delegated powers which are not Henry VIII powers. Ministers would be able to amend the retained EU law only by using existing Henry VIII powers where applicable or by using the powers conferred under this Bill. I should add that although the Bingham Centre for the Rule of Law does agree that the failure of this Bill to address the legal status of retained EU law is a serious defect, it does not agree with the remedy proposed by the Constitution Committee. The centre has expressed concerns that to treat all retained EU law as primary legislation risks devaluing its currency as well as running the risk that we will become inured to the use of Henry VIII powers to amend primary legislation.

The Bingham centre, like Professor Paul Craig, would prefer the Bill to accord a legal status to retained EU law that depends on the status which the norm had in EU law pre-exit day. There is an opinion from Mr Pushpinder Saini, the Queen’s Counsel for ClientEarth, which makes a similar proposal. I would be content with such a solution to this complex problem on which different views may reasonably be taken as to the solution, but I emphasise that the Constitution Committee and the Bingham centre agree that there is a serious deficiency in this Bill since it fails to accord a defined legal status to the retained EU law. I therefore look forward to hearing the Minister’s response to all three of the problems in the Bill raised by this group of amendments. First, the inclusion in Clause 5 of the concept of the “supremacy of EU law”; secondly, the failure of the Bill to confer a domestic legal status on retained EU law: is it primary legislation, is it secondary legislation; what is it?; and thirdly, the lack of clarity in Clause 5(3) with its reference to,

“the intention of the modification”.

I beg to move.

Photo of Baroness Morris of Bolton Baroness Morris of Bolton Deputy Chairman of Committees, Deputy Speaker (Lords) 6:30 pm, 5th March 2018

My Lords, if Amendment 31 is agreed to, I cannot call Amendment 32 for reasons of pre-emption.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, when I first heard of a Pannick amendment, I thought it was something like an emergency resolution. I now realise that it is an elegantly drafted and eloquently spoken to amendment. In the light of what we have just heard from the noble Lord, Lord Pannick, there will be no need for me to move Amendment 32.

Photo of Lord Dykes Lord Dykes Liberal Democrat

My Lords, I begin by very quickly thanking the noble Lord, Lord Foulkes, for his comments—with which I agree entirely—and the noble Lord, Lord Pannick, for his very comprehensive explanation.

In general, Clause 5 is very problematic as drafted. I am grateful for the suggestions that have been made so far. Other colleagues who have spoken on other occasions about this danger in Clause 5 have expressed real concern about it suggesting leaving out the main subsections. Even if Section 1 is not separately debated today, they all come together in a cohesive generality.

The Bill converts existing EU direct law—as has been said, mainly regulations but also directives and sometimes decisions—into UK law as it applies on the actual exit date. I fear that Her Majesty’s Government, who have already shown massive incompetence in handling the whole wretched process of Brexit, underestimate the huge volume of SIs that would need to cascade through the system if enacted as they stand. I feel very strongly that it would not be seemly and proper to incorporate the words of the so-called supremacy of EU law as is written down now, even if there was a laid-down definitional basis. Even the qualified tone in subsections (2) and (3) does not reassure me. Unless the text is improved appropriately, I envisage endless scenes of parties arguing in UK courts over the underlying meanings—arguments for some length of time and at notable expense, of course.

Many outside expert observers of these matters—including, I recall, the Law Society—have flagged up these possible consequences. There have also been suggestions of them in various quarters, not least in our House’s Constitution Committee. The principle of the famous Clause 2 in the original 1972 EU membership Bill should be invoked to decide on the solutions—albeit for the reverse objective and in the reverse direction—to mitigate these dangers and provide the cover-all effect needed to avoid unnecessary litigation and post-Brexit wrangling.

I conclude by emphasising that taking part in these irritating and, dare I say, excessively bureaucratic legislative procedures in no way implies my support for the Government’s foolish, relentless, drive for a nightmare Brexit that fewer and fewer people in the UK now want. That is why I support the symbolic resistance of the noble Lord, Lord Adonis, to all the clauses standing part, including Clause 5.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat

My Lords, we are now looking again at the principle of supremacy and status. I agree with a great deal—in fact, almost all—of what the noble Lord, Lord Pannick, said. However, in the various amendments I have sprinkled around, I differ with him on one fundamental point: I always wish to preserve the rights of individuals and businesses to have legislation struck down. That is their current position in that they can have EU law struck down. I put forward my alternative plan in Amendment 32A; I will explain how I got to it.

Broadly speaking, there are three baskets of EU laws. In basket 1, there are the treaties and the Charter of Fundamental Rights, which have to be followed by the European court. They are not revocable, as I am sure noble Lords know, and it is a big procedure to change them. In basket 2, I put legislative acts, meaning regulations and directives that set policy. To be precise, they can be identified by the article of the procedure in the treaty that they were made under. In the Lisbon treaty—the TFEU—it would be Article 289. The important point for noble Lords to hold in their minds is that these regulations and directives set policy. Basket 2 legislation can also be struck down by the European court—including on an action from individuals and businesses—for being incompatible with the treaty or the charter. A recent example is the data retention regulation that was ruled disproportionate in cases brought by Digital Rights Ireland and others. In basket 3, I put the implementation of Acts and delegated Acts and their predecessors. In the Lisbon treaty, that comes under Articles 290 and 291. These can be struck down by the European court for being incompatible with the treaty or the charter, as well as for being incompatible with the powers and instructions that were delegated to it in the legislation on which it depends.

If we take rights as our guide—by which I mean the right of an individual or business to challenge the validity of a bad law—then we get to the categorisation that the EU gives to law: that it is all secondary, except for the treaties and the charter. It is quite easy to accept that retained EU general principles—corresponding to basket 1, as I called it—should have primary status. Once converted under Clause 7, it would be wrong if they were changed or revoked other than by an Act of Parliament.

Basket 3 regulations are very close to statutory instruments in the way that they are made based on delegated powers, including an all-or-nothing single vote in the Council or Parliament to turn the whole lot down. There is also similarity in the ways they can be invalidated in court. That is quite easy to map on to our statutory instrument. Basket 2 is harder. The policy content and procedure of making the law look a lot like the making of an Act of Parliament; that leads some—I think Professor Craig was one of them—to conclude that it should map on to primary legislation. But then, if primary, it cannot be quashed under the general principles, so the rights of individuals and businesses are lost. Of course, if noble Lords look at Schedule 1—as we will later today—it can be seen that is the Government’s intention that there is no right of action on a failure to comply with the general principles of EU law. That is wrong. Treating legislation as primary carries the same cost that the Constitution Committee accepts. As it says in paragraph 48 of its report:

“Treating retained direct EU law as primary legislation for all—including”,

Human Rights Act,

“purposes is not without constitutional costs”.

I consider that cost to be too high because I give more weight to maintaining status quo rights and the reasonable expectations of individuals and businesses than making judgments easier or fewer.

We have to address that question several times in the Bill. Each time, I come down on the side of the people’s rights. No manifestos have ever said, “We want to take back control, including your right to challenge bad law”. However, the secondary legislation nature of basket 2 may require some further protection from overly easy change and revocation by statutory instruments, especially once things are no longer pinned in place because we are not part of the EU. In the EU, this was not made by a statutory instrument-type process, nor is it amendable in that way, so basket 2—although of secondary legislation status—could be deemed amendable in life after Clause 7 only by an Act of Parliament. This idea is similar to the one we debated regarding Amendment 21 in the name of the noble Baroness, Lady Hayter. Such treatment means that there is a special category for these laws, but we are in an unusual situation. The fact is that basket 2 is an intermediate, piggy-in-the-middle category. It is secondary legislation-plus, or primary legislation-minus. It could be replicated more or less by secondary legislation plus amendment protection, or the other way round as primary legislation but challengeable as to validity, although that is a bit more controversial.

The piggy-in-the-middle nature shows up in other ways. Basket 2 legislation actually contains within the individual documents a great deal of detail that in the UK domestic system would be done in delegated secondary legislation. It is the same with directives: a greater level of detail is there than in the lean and mean UK Acts of Parliament. That is even more the case after implementation for the secondary legislation made under the European Communities Act. For example, look at the Sanctions and Anti-Money Laundering Bill, which recently received its Third Reading in this House. The money laundering regulations 2017, based on the fourth anti-money laundering directive, are some 112 pages plus a glossary. They were replaced in the Bill by one clause of 28 lines, including the headings and a three-and-a-half-page schedule listing delegated powers. It has been much amended and improved, but the contrast in content is much the same. If we made secondary legislation transposing directives into primary legislation, there would be a great deal of detail on which I would not wish to say I gave the sovereignty of Parliament a totally unchallengeable status.

There are three parts to my amendment. The first would reword the supremacy principle. I intend it to do the same thing and I am not precious about the wording. In fact, I just modified the Constitution Committee’s idea and stole the idea that you allocate precedence as if it were primary legislation, but in my plan the only bit of primary legislation it gets is the precedence. The second part would allocate secondary status to basket 2 retained legislation, and indeed to basket 3—everything except for Acts, because where we have Acts they already are and look like Acts. I then allocate primary status to EU general principles. As I have indicated, for life after Clause 7, basket 2 could be made so as to require amendment by primary legislation. Possibly that belongs in Clause 7 or somewhere else.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, my noble friend Lady Bowles has identified a problem that goes beyond what the committee sought to solve in its proposal, and proposed an ingenious way of trying to deal with it. The committee’s proposal seeks to protect the important bits of that legislation from the degree of vulnerability provided by the repeal of statutory instruments under our present procedures. It is an intriguing point in some ways, because I expect this to be a shrinking area of law over time. If we leave the EU, one assumes that much of this legislation will in time be replaced by new legislation bringing that area of law up to date, not because it is EU law but because things move on and there is a need to do so.

That reminds us of the danger that the committee set out at paragraph 103 of its report. It said:

“If the ‘supremacy principle’ were to continue to feature in the Bill, clause 5(3) would need to be amended to clarify the extent to which retained EU law can be modified while retaining the benefit of that principle, and to clarify in what circumstances the modification of pre-exit domestic law would be such as to turn it into post-exit domestic law that is no longer vulnerable to the operation of the ‘supremacy principle’”.

We chose not to go down that road or try to define it because it seemed an extremely bad situation to get into. One other problem that I will add to the list so well adumbrated by the noble Lord, Lord Pannick, occurs in paragraph 87 of the report, which points out that Clause 5 would also need to be amended,

“to provide courts … with suitable guidance for the purpose of determining whether a rule of the common law should be taken to have been ‘made’ before or after exit”.

If that is not done then the procedure that the Government have chosen will yet again promote and continue uncertainty. In both cases it would be better to go for some version of what the committee proposed.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct 6:45 pm, 5th March 2018

My Lords, I agree very substantially with my noble friend Lord Pannick’s general approach. Any attempt to repeat or paraphrase what he said would merely weaken it. I shall not do so, but I will make two comments.

First, on the supremacy question, my noble friend is clearly right that this is a wholly alien notion and we do not want it incorporated in the Bill. I confess I could not find what he calls Amendment 31A in my Marshalled List—this must be my fault. Is it the same as what I have as Amendment 32B? I suspect it may be. I certainly read that amendment as modelled on Professor Paul Craig’s proposal for how to deal with this. If that is the position—my noble friend nods helpfully to indicate that it is—I entirely support that approach. The language is substantially Professor Craig’s and it is altogether satisfactory.

Secondly, my noble friend canvassed an outline of the alternative ways to deal with giving legal status to, and the categorisation of, retained EU law. On the one hand, the Constitution Committee suggested that we turn it all into UK primary legislation. Then there is Professor Paul Craig’s competing approach, which is also endorsed by the Bingham Centre. I have a huge preference for the latter, not the former. As Paul Craig points out, we pass, in round figures, about 40 statutes a year. If we suddenly turn 10,000 or so instruments—the figure I think he suggests—which obviously in the ordinary categorisation would fall into the category of secondary legislation, into primary legislation, with all the consequences of that, we would simply overwhelm the statute book. We would make it impossible to deal with them properly as statutes. We would then inevitably start needing Henry VIII clauses in full measure. We would devalue primary legislation and give credibility and justification to use of Henry VIII powers, which is the last thing we want to do. Go down the Craig-Bingham line, not the Constitution Committee’s recommended route. I say that with all respect and deference to the committee, whose report is overall an enormously helpful document.

Photo of Lord Campbell of Pittenweem Lord Campbell of Pittenweem Liberal Democrat Lords Spokesperson (Defence)

My Lords, I can be brief. I wish to support the various submissions made by the noble Lord, Lord Pannick, but also to draw your Lordships’ attention to some revealing contents of the Constitution Committee’s report, in particular the words of the Solicitor-General, which seem to indicate very clearly the weakness of the Government’s position.

As I recall, the noble Lord, Lord Pannick, confined himself to the first sentence of paragraph 69 of the report:

“It is constitutionally unacceptable for ministers to have the power to determine something as fundamental as whether a part of our law should be treated as primary or secondary legislation”.

He went on to say that this is a recipe for confusion and legal uncertainty. I invite your Lordships to look to paragraph 67 on page 23 of the report, particularly the direct quote from the evidence given by the Solicitor-General. He says of the powers under discussion that,

“there is nothing unusual about these powers. However, I accept that the way and the context in which they are used is somewhat unusual … I accept that we are in new territory here. Having said that … when embarking on new territory, all Ministers tread extremely carefully”.

If this is genuinely new territory, it is inevitable from the Solicitor-General’s expression that there is no precedent. If there is no precedent for exercise of powers in the way the Government seek, that is not just something where we should tread extremely carefully; it is something which should be rejected outright.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I indicated at Second Reading that I would support the propositions that the noble Lord, Lord Pannick, has enunciated on behalf of the Constitution Committee. Bringing into our system legislation from an alien system and doing so reasonably consistently require it to have an allocated status of some kind. Making it primary legislation is probably the best. Otherwise, there will be doubt about precisely which item of legislation goes to a particular area. The result will be to make it possible to dispense with the rather outmoded idea of the supremacy of EU law once Brexit comes along by the date which allows our ordinary system to operate.

I have tremendous respect for the Bingham system and, as your Lordships know, for the noble Lord whose name it carried. It has kept up the traditions and quality of his work wonderfully—I should perhaps in passing declare an interest: I find it very useful to support the Bingham institute in connection with its funding. However, it makes quite a lot of the difficulty of using Henry VIII clauses. This is a very special situation, as the Constitution Committee recognised some time ago, because trying to fit together two systems of legislation is certainly difficult. We must remember the timescale involved in trying to do it any other way. I shall not comment on the detail of the powers to amend proposed in the Bill—that is for a later stage—but it is reasonable at the moment to accept that this is a very special situation with a necessary operation which requires to be performed in reasonably short time to make the whole thing work. Therefore, the idea that we are dividing primary legislation by this method is open to doubt.

Photo of Lord Adonis Lord Adonis Labour

My Lords, when we last debated this issue, the Advocate-General for Scotland said that he was very attracted to the proposals published by Professor Paul Craig in his blog—the noble Lord, Lord Pannick, referred to that. I notice that Professor Craig published a subsequent blog on 26 February, also referred to by the noble Lord, in which he suggests that, once the process of transposing law has taken effect, we should assign,

“legal status to EU retained law in the UK based on the status it had in EU law”

Having read his blog as a non-lawyer, I felt that, if the intention is to give certainty, the proposals of Professor Craig would do that—except in one key respect which I hope the Minister might comment on: what process would be undergone between now and next February to allocate the huge body of retained law to one or other category if we were to adopt Professor Craig’s mode of proceeding? Since the Solicitor-General said in the House of Commons that about 20,000 pieces of EU law will be transferred, and if it were possible to establish, as Professor Craig sets out, a criterion based on the intention of existing EU law which would divide between primary and secondary legislation, can the Minister indicate, if he is minded to go down that route, what process would take place, so that, on 29 March next year, we know the status of law being transposed?

Photo of Lord Goldsmith Lord Goldsmith Labour

We need to speak from these Benches as well.

The noble Lord, Lord Pannick, made a powerful speech in favour of his amendment, backed by the powerful arguments of the Constitution Committee. It is apparent that this gives rise not to a difference on what the end objective should be: the need for clarity; the need for a clear status for EU law; and the recognition that retained EU law will need to retain its position of priority over pre-existing UK law because that is the status it has at the moment and because, as we have been reminded in debate after debate, the Government have promised that EU law will be passed across on exit day as it is at the moment. The routes proposed by the Constitution Committee and the Bingham Centre for the Rule of Law—and in the interesting proposals put forward the noble Baroness, Lady Bowles—demonstrate that it is possible to reach those objectives by different routes.

However, the methods put forward by the Constitution Committee and the noble Lord, Lord Pannick, have the merit of simplicity and elegance. The status of the law is clear. We do not have to go through a process of trying to decide between now and next February what it is; we certainly do not have to go through a process of allowing a Minister to use powers under Clause 17 to assign a process, which would be, as the Constitution Committee says, an unacceptable approach.

It would have the additional advantage, or so it would seem to me at least, that retained EU law would then have some protection against amendability, save by the processes of this House and the other place considering the amendments which ought to be made rather than by a process of delegated legislation—I say “some” protection, because it would not be complete. Those seem reasons why the elegant solution proposed by the Constitution Committee and the noble Lord, Lord Pannick, has much to commend it

I would like to read when it becomes available what the noble Baroness, Lady Bowles, said, to make sure that I fully understood all of it. I do not disagree with the intention behind it, but the proposal of the Constitution Committee may achieve it more readily and elegantly.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I am obliged for all the contributions and for the opportunity to respond to this debate. These provisions and amendments may be technical, but, in debating them, we must not lose sight of the real practical consequences that follow from how we deal with this issue. As the noble and learned Lord, Lord Goldsmith, observed in passing, we are aiming at the same goal; it is a question of which route can most appropriately take us there. I shall come on in due course to look at some of the routes proposed.

Photo of Lord Goldsmith Lord Goldsmith Labour

I was referring to the different proposals by the Constitution Committee and the Bingham Centre, rather than to the Government’s proposals.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

Then I reassure the noble and learned Lord that we are all intent on arriving in the same place; it is a question of how we arrive there. I shall deal with the routes that he touched on.

Perhaps I may correct one point: the noble Lord, Lord Adonis, referred to the work of Professor Craig and to some previous remarks that I had made about that. I commend to him what I said as recorded in Hansard. I referred to the publication of 26 February on the previous occasion; it did not come out after those remarks were made. I shall mention Professor Craig’s analysis in due course. The task of categorising such legislation would be challenging, but we would consider it as one route forward.

As we know, one of the core requirements of EU membership is the principle of supremacy of EU law. In the event of any conflict with domestic law, domestic law must give way. When we leave the EU, it would make no sense and would not be in keeping with our principles to leave that unchanged in our law; we all recognise that.

Clause 5(1) is therefore reflective of an important principle. It makes clear that the principle of supremacy will not apply to any domestic legislation which is passed or made on or after exit day. I had understood Amendment 32 in the name of the noble Lord, Lord Foulkes, to be aimed at the same outcome. I note that he has not moved that, although he has moved and is no longer in his place. While the principle of supremacy will end for new law after exit day, we have been clear throughout that we want to ensure certainty and continuity in the way our existing laws work. That is crucial if individuals and businesses are to have confidence that our statute book will continue to function as it does now. The Bill therefore sets out that, in relation to any pre-exit domestic legislation, the principle of supremacy will continue to apply, so far as relevant, to the relationship to retained EU law. Remaining silent within the Bill or taking a different approach would, we apprehend, risk changing the law and creating uncertainty as to its meaning and effect. I suggest that our approach to this issue strikes the right and sensible balance between ending the supremacy of EU law and maintaining coherence and continuity in the way our statute book functions.

Reference has already been made to the Bingham Centre’s report, particularly by the noble Lord, Lord Pannick. On this specific point it says that,

“the objective of clauses 5(1) to (3), namely to give retained EU law priority over pre-exit, but not post-exit domestic law, is not merely ‘a sensible one’, it is required by the Rule of Law. Anything which is not crystal clear about that fundamentally important point risks giving rise to legal discontinuity, because it leaves scope for argument about which rule takes precedence in the event of a conflict between retained EU law and pre-exit domestic law”.

The amendments put forward by the noble Lord, Lord Pannick, and the noble Baroness, Lady Bowles, seek to remove the principle of supremacy from the Bill, but then to replicate its effect in domestic law in a different way, or to modify that effect: I acknowledge that. Indeed, the noble Baroness seeks in her Amendment 32A to replicate and modify the effect of the principle of supremacy in our domestic law and create an internal hierarchy within the category of retained EU law after exit. Like the noble and learned Lord, Lord Goldsmith, I shall look in some detail at her description of that hierarchy in Hansard. There is concern that such a hierarchy, or the way that such a hierarchy would be determined, could undermine the clear position in the Bill. It is also implicit in her amendment and the hierarchy she seeks to create that we would essentially be assigning a single status for all purposes to that legislation. That may not be appropriate.

The noble Baroness’s amendment also provides, as I understand it, for the general principles of EU law to be treated as primary legislation. While that may be aimed at ensuring ongoing protection for these principles, it is unclear how this would work in practice. Not all the general principles are contained in legislation. They have been developed in the jurisprudence of the ECJ and the CJEU over many years and are applied by the CJEU and domestic courts as an aid to interpretation and when determining the lawfulness of legislative and administrative measures within the scope of EU law. Given their very nature, there is no definitive, agreed list of existing general principles. To simply deem these non-legislative principles to be primary legislation in the way the noble Baroness proposes in her amendment would, I suggest, raise real questions of workability.

Amendment 31, proposed by the noble Lord, Lord Pannick, would remove references to the principle of supremacy from the Bill entirely. Amendment 32B would ensure that retained EU law continues to have precedence over pre-exit domestic law in the event of any inconsistency between the two. Amendment 33 would assign a single status for all purposes to all retained EU law. As I understand it, the noble Lord is therefore arguing that it is unnecessary to retain the principle of supremacy if we are to treat all retained EU law as though it is domestic primary legislation enacted on exit day and make clear that, in a conflict between retained EU law and pre-exit domestic law, retained EU law has priority.

Photo of Lord Pannick Lord Pannick Crossbench 7:00 pm, 5th March 2018

It is more fundamental than that. The difficulty is, why use the concept of the supremacy of EU at all? It is surely inappropriate in a Bill of this nature.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

Not necessarily in the context of retained EU law, which comes over with that principle of supremacy standing behind it. I will come on to deal with that in more detail. I understand that, as the noble Lord indicated, his amendments draw on the recommendations made in the Constitution Committee report on the Bill—although I was interested to note that Amendment 33 appears to go further than the recommendations put forward by the committee, in that it extends the status of primary legislation to all retained EU law, rather than just to law being preserved by Clauses 3 and 4 of the Bill. So there is that difference between Amendment 33 and the recommendations of the Constitution Committee.

I understand entirely the concerns here and the attraction that these amendments have as a result. It is only right, however, that we should examine fully the consequences of dealing with status in a one-size-fits-all way.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Labour

Before the Minister moves on to the consequences, perhaps I might draw his attention to the status of environmental law currently drawn from the European Union. Of course, a considerable proportion of the anticipated changes that will be required are in environmental law, because so much of what we draw from Europe is environmental law. At the moment, the status of environmental law drawn from Europe has been pretty random, to be frank, and not at all reflective of the importance of the legislation. It has been random, whether it is drawn from a regulation which would be picked up by the clauses that the Minister mentioned or from a directive which would not be picked up in that way. But it did not really matter that it was rather random in its status, because the framework provided by the ECA was there, and therefore none of the legislation could be meddled with randomly by the Executive. Of course, once the safeguard provided by the ECA has gone, the status of existing environmental law becomes rather strange. It sticks out like a sore thumb, in that some of it that one would think was sufficiently important to be considered eligible, as it were, for primary legislation, has not got that current status, while other bits of law that are pretty functional and practical have a much lower status. So I urge the Minister to think about just how complicated the process would be if we did not simply adopt a single status for all that law.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

First, with respect to the noble Baroness, I do not accept that the way in which environmental law has been received and enforced in our domestic legislation has been random. We differ at the outset to that extent. Of course, various propositions have been put forward, one of which is to give the status of primary legislation to all retained EU law—but that would raise difficulties that I will come on to address. The categorisation below that can be carried out: indeed, the noble Baroness tried to set out for Amendment 32A a hierarchy that could be employed in that context. But I do not consider that environmental law stands out in the way that the noble Baroness suggests.

Our concern is that, as I mentioned, a one-size-fits-all approach will not really work. Again, I quote from the Bingham Centre’s report, which stated:

“We consider that the Rule of Law objectives of legal continuity and certainty are better served by the approach taken by the Government in the Bill. The principle of supremacy is well understood and its future role is very limited, being confined to the relationship between retained EU law and pre-exit UK law. Treating all retained EU law as primary legislation enacted on exit day, on the other hand, will increase legal uncertainty because it changes the settled approach and leaves unclear whether the interpretive obligation, to interpret pre-exit UK law so as to be compatible with retained EU law, continues to apply”.

EU law that is being converted into domestic legislation under this clause covers both a vast range of different policy areas and different types of EU law, from regulations and directives applying to agriculture and farming to detailed and technical pieces of tertiary legislation, such as the list of contents for a dye or chemical. At the end of the day, treating all of that as primary legislation would present, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, a quite enormous task for Parliament if it is going to legislate to amend any of that retained EU law. How many Acts of Parliament would we have to contemplate putting through this House to wrestle with that demanding position? It really would be formidable. Because this legislation will come on to our domestic statute book in a unique way, it will not already have been scrutinised and approved by this Parliament—so we would be bringing in this enormous body of law and treating it as primary legislation when nobody in this Parliament had actually examined it.

The breadth of this body of law, in the case of EU law being converted, is unique in its nature, which is why the Government have deliberately chosen to tread rather carefully and not simply assign a single status to that retained law in domestic legislation. While assigning a single status for all purposes to all retained EU law may be theoretically possible, it would have the most difficult consequences and might lead ultimately to a situation in which we had to extend the use of Henry VIII powers beyond any reasonable limit normally contemplated in the context of provisions of this kind.

Beyond that practical consideration, there is a more fundamental concern about the constitutional appropriateness of what has been proposed. Domestic primary legislation is less vulnerable to subsequent amendment and is less vulnerable to challenge in the courts for a very good reason—because, as I said, it has undergone scrutiny by both Houses of Parliament, which means that there can be no doubt about Parliament’s intentions so far as that primary legislation is concerned. That would not apply to retained EU law.

While we are spending considerable time scrutinising this Bill, we are not able to scrutinise the law it is converting. Some of that law is itself the EU’s own subsidiary legislation, which has not been subject to comparable scrutiny anywhere. The noble Baroness observed on an earlier occasion that the European Parliament had had the opportunity to scrutinise much of this. It has had the opportunity to scrutinise some of it, but scant scrutiny—if any—of the subsidiary legislation has actually occurred in the European Parliament. By contrast, our proposed approach has been to deal with the status of converted law for certain specified purposes, such as that alluded to by the noble Lord, Lord Pannick: that is, paragraph 19 of Schedule 8 in the context of the Human Rights Act and rights arising from there.

Of course I understand the concerns put forward by the Constitution Committee and noble Lords about the consequences of the case-by-case approach that we are taking. I do not dismiss them lightly and I do not say that the Bill is a perfect solution to the issue that we have to address. As I indicated on day three of Committee, there is some scope for considering how we can take this forward. Reference has already been made to the work of Professor Paul Craig and the alternative model of categorisation that he proposed in his article of 26 February. That is something that we are looking at—albeit, as the noble Lord, Lord Adonis, anticipated, that it might involve a considerable amount of work. But if that can be an appropriate and effective categorisation, rather like that of the noble Baroness, it is something that we are willing to look at.

Again, I ask the Committee not to dismiss lightly the potential ramifications of treating all this law as having the status of primary legislation just to exclude the concept of supremacy from the operation of Clause 5. That would raise formidable problems for us and we do not see it as an effective way forward for the Bill. But, as I indicated previously, we are looking at the mechanisms employed here, and a mechanism that avoids actually applying the doctrine of supremacy may find greater traction as a way forward if we can come up with a suitable categorisation for retained EU law, rather than a blanket categorisation of primary legislation. I invite the noble Lord to withdraw his amendment.

Photo of Baroness Bowles of Berkhamsted Baroness Bowles of Berkhamsted Liberal Democrat 7:15 pm, 5th March 2018

Perhaps I may make an observation. Leaving general principles out of it, if you categorise all the legislation as secondary legislation and then deem that some of it can be amended only by Act of Parliament, you do not have to sort it all. You would have to sort it only when you wanted to amend it—and at that point you would look at the basis on which it was made.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am obliged to the noble Baroness for that observation. Obviously, that is something that we would take into account. It perhaps touches on a question I did not answer from the noble Lord, Lord Pannick, with regard to Clause 5(3), where he queried the reference to the “intention of the modification”. Of course, what that makes clear is that this will need to be considered on a case-by-case basis.

Photo of Lord Pannick Lord Pannick Crossbench

Of course, “case-by-case basis” suggests lots of work for lawyers and a lot of legal uncertainty. I am grateful to the Minister and all those who spoke in the debate. There was, I think, widespread agreement in the debate—apart from the Minister—and from expert commentators that a legal status does need to be conferred in the Bill on retained EU law. How one confers the legal status is much more difficult than what legal status one confers. I would say that there is more one way to skin a cat—but that may upset those who spoke in the previous debate.

I am grateful to the noble and learned Lords, Lord Mackay of Clashfern and Lord Goldsmith, for supporting the approach recommended by your Lordships’ Constitution Committee. But I agree with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that there is also great force in the suggestion made by Professor Paul Craig that the Bill should confer a status of either primary or secondary legislation, dependent on the category of EU law from which the retained EU law derives. I say to the noble Lord, Lord Adonis, who asked about this, that Professor Craig is not advocating a process of allocation on a case-by-case basis; he is advocating that legal status should depend on the article of the EU treaty from which the retained EU law derives—a much more objective approach.

Photo of Lord Brown of Eaton-under-Heywood Lord Brown of Eaton-under-Heywood Chair, Sub-Committee on Lords' Conduct

Did my noble friend hear Paul Craig say at a seminar, as I did, that it would take four competent EU lawyers four days in Brussels to classify, consistently with the classification both pre and post Lisbon, all this legislation? Four lawyers, four days—that is perhaps the answer to the question of the noble Lord, Lord Adonis.

Photo of Lord Pannick Lord Pannick Crossbench

Well, it depends. How long is a piece of string—how long does it take EU lawyers to allocate? But it is an objective approach. There may be difficulties, but they would be far fewer than the problems that would be posed by not addressing this problem at all in the Bill or by leaving it to Ministers to determine the matter. The other suggestion was that made by the noble Baroness, Lady Bowles. She may have the right answer. She spoke of various baskets—I think it was “baskets” rather than the word used by Sir John Major as Prime Minister in relation to opponents of the Maastricht treaty.

The core point is that it is unacceptable for the Bill to ignore the question of legal status. It is a problem that needs to be addressed if the Bill is to achieve its objective of securing legal certainty. Therefore, I hope that the Government will, as the Minister indicated, reflect on these issues before Report. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

Amendments 32 to 33 not moved.

House resumed.