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European Union (Withdrawal) Bill - Report (2nd Day)

Part of the debate – in the House of Lords at 7:45 pm on 23rd April 2018.

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Photo of Lord Pannick Lord Pannick Crossbench 7:45 pm, 23rd April 2018

My Lords, your Lordships’ Constitution Committee recommended at paragraph 51 of our report—HL 69—that the Bill should address the legal status of retained EU law; that is, whether it has the status of primary legislation, secondary legislation or something distinct. I am pleased that the Government have considered this matter—I am grateful to the Minister—and have produced the amendments in this group. My understanding is that they address the problem by ensuring that any domestic law which becomes retained EU law under Clause 2 continues to have the same legal status that it has at the moment: it is either primary legislation or secondary legislation.

In relation to retained EU law under Clauses 3 and 4, the amendments do not so much confer a legal status as address the problem by reference to the circumstances in which the retained EU law can be modified. The provisions are complex, and, I fear, necessarily so, given the inherent difficulty of the exercise.

My remaining concern is that by addressing the question of legal status by reference to the power of amendment, with the exception of saying that retained EU legislation is primary legislation for the purposes of the Human Rights Act under paragraph 19 of Schedule 8, the Bill continues to provide less than adequate guidance on other issues which may arise in relation to retained EU law. The legal status of retained EU law matters, as the Bingham Centre’s report identified, if, for example, the court is asked to decide which rule takes priority if there is a conflict between different elements of retained EU law or if the question arises on what grounds may the content of retained EU law be challenged in court as invalid and what remedies are available if the legal challenge is successful. Paragraph 1 of Schedule 1 prevents a challenge on EU law grounds, but not, as we were told in Committee, on domestic law grounds if the instrument has the status of subordinate legislation.

I was pleased to hear the Minister helpfully say that he is happy to return to these issues at Third Reading. They are complex and the amendments are complex. I hope that before Third Reading the Minister will be prepared to meet noble Lords and noble and learned Lords who have any concerns in relation to this, but I am very grateful to the Minister and the Bill team for the care and attention that has been given to this matter.