Amendment 5

Trade Bill - Third Reading – in the House of Lords at 4:30 pm on 20th March 2019.

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Moved by Baroness Fairhead

5: Clause 2, page 3, line 5, after first “for” insert “civil”

Photo of Baroness Fairhead Baroness Fairhead The Minister of State, Department for International Trade

My Lords, this group covers Amendments 5 and 6. I will speak first to government Amendment 5. I will then respond to any additional points that the noble Lord, Lord Pannick, makes on his Amendment 6.

We had a valuable discussion in this House on Report on 6 March about what the powers in Clause 2 can and cannot be used for, prompted by the amendment proposed by the noble and learned Lord, Lord Judge, and the noble Lords, Lord Pannick and Lord Beith. That amendment was withdrawn, and I subsequently wrote to and met interested Lords to clarify the matter further and to consider how their concerns could be addressed without casting doubt on the meaning of other powers across our statute book.

Before addressing the detail of the Government’s amendment, it might assist the House if I confirm for the record that the Government entirely agree that it is not appropriate for Explanatory Notes to be used as a means to confine broad ministerial powers. Furthermore, the Government agree that the rule in Pepper v Hart cannot and should not be relied on to clarify unclear drafting. As I think one noble and learned Lord said in our meeting, Pepper v Hart is a judicial solution to legislative failings and should not be used to justify those failings. I am happy to have this opportunity to put on the record, for the avoidance of doubt, that the Government do not seek to rely on Pepper v Hart in the context of Clause 2. I was happy to confirm this in the letter that I wrote to the noble and learned Lord, Lord Judge, and other noble Lords who took part on Report. I have placed copies in the Libraries of both Houses.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

The noble Baroness said that the Government did not intend to rely on Pepper v Hart to deal with any issues that arise from the Trade Bill, which is very welcome indeed. Do the Government intend to use Pepper v Hart in other areas to clarify legislation in a way that they particularly want?

Photo of Baroness Fairhead Baroness Fairhead The Minister of State, Department for International Trade

My Lords, I hope that the statement I made is entirely clear—we accept that Explanatory Notes should not be used to clarify legislation in that way.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

I asked a question about Pepper v Hart, not about Explanatory Notes. They are two different issues.

Photo of Baroness Fairhead Baroness Fairhead The Minister of State, Department for International Trade

I can confirm that the Government do not intend to use Pepper v Hart in the way that the noble Lord suggested we might. I hope that is clear to noble, and noble and learned, Lords.

I turn now to Amendment 5 and the considerations behind it. The power in Clause 2 cannot be exercised to create or extend criminal offences, impose fees, amend primary legislation—other than retained EU law—or create new public bodies. This is based on long-standing principles about the statutory construction of powers and on well-established legislative presumptions. These make it clear that certain things cannot be done by secondary legislation, unless they are expressly provided for in the enabling Act.

However, on the point about criminal offences, I am grateful for the very constructive discussions with noble Lords. These have led the Government to bring forward an amendment that would improve this Bill in a way that does not cast doubt on other powers in existing enactments. The Government’s amendment is simple but, we believe, effective. It inserts the word “civil” into Clause 2(5)(d) so the text means that this power to implement continuity trade agreements may be used only to make provisions for civil penalties for failing to comply with the regulations. The explicit reference to civil penalties, without mention of criminal offences, makes it clear that the power may not be used to make or extend criminal offences. I trust that these words, alongside the government amendment, will provide reassurance to your Lordships.

Photo of Lord Judge Lord Judge Judge

My Lords, I first thank the Minister for her positive approach to the issues we raised in debate. In passing, I thank the noble Lord, Lord Stevenson, for helping us to sort ourselves out. The statement in the House today follows the exact terms of a letter that the Minister kindly wrote to me on 11 March. I welcome it. In the circumstances I just want to highlight why we brought this amendment before the House last time. It was to expose two constitutional heresies. The first was that Explanatory Notes may be used for the purposes of construing legislation. We thought that was a heresy. The Government had sent us a letter which told us that this was what they were going to be used for. The second heresy—which was in the same letter—was that Pepper v Hart could be relied on to clarify unclear drafting. The whole point of legislation is that it should be clear. Pepper v Hart is a last resort when this House or the other place has made a mess of the legislation.

I do not think it is necessary, or would be helpful to the House, to repeat what the Minister said. She said that she was referring to the letter. She lifted what she said to the House directly from the letter. With that, I think that for all times in the future—at any rate for the next considerable number of years—we can work on the basis that those two constitutional heresies shall be, and have been, consigned to the dustbin of constitutional oblivion. Can we please forget about it from now on?

I want to make a separate point to the Minister. I am afraid that events moved rather fast and I missed the boat on this. If I had thought about it sooner I would have had an amendment in to Clause 2(5) to exclude the words “among other things”. The fact that I missed the bus does not mean that I may not come on it if it comes into fresh or different legislation. If it is being thought of as a possibility for fresh or new legislation, I urge the Minister to make all her colleagues understand the way the Government approached the Healthcare—I cannot remember which of the many words followed that word—Act that we enacted last night omitted the words “for example”. Those words give far too wide a power to the Minister. I shall come back to “among other things” if the phrase ever returns, so forgive me. However, in view of the assurances from the Minister, the clarity of her observations to the House today and the amendment that would meet the concerns we advanced in relation to statutory construction, so far as I am concerned I do not propose to move my amendment.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I too thank the Minister. She has devoted considerable time and effort to meeting those of us who signed the previous amendment and expressed concern about this matter, and she has addressed our concerns in a very positive manner. I say to the noble Lord, Lord Davies of Stamford, that I—and, I understand, my noble and learned friend Lord Judge—understand the Minister to be making a general statement: this is not a statement confined to the particular provisions of the Bill but a general statement about the Government’s view relating to Pepper v Hart and the use of Explanatory Notes. I very much welcome that statement, which, as the Minister said, is precisely what she said to us in the letter she wrote.

All this exemplifies a concern that your Lordships’ Constitution Committee, under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton, expressed. My noble and learned friend Lord Judge, the noble Lord, Lord Beith—who was also party to the amendment on Report—and I have all expressed concern about the tendency of the Government to bring forward in legislation very broad powers and then to rely upon the good will and the good faith of the Minister in their exercise. We have repeatedly urged that Bills should not be so drafted and I think we have the support of the House in making those points regularly and consistently. We will continue to do so, I am sure, and it would be very helpful if other Ministers would understand that concern, as the Minister undoubtedly does, and ensure that legislation is tightly drafted so that proper parliamentary controls can take place.

Photo of Lord Wakeham Lord Wakeham Conservative

Perhaps I might say a word, because I was the Chief Whip in the Commons when the Pepper v Hart decision was taken. What the Minister has said is of great advantage to her, because the difficulty I had then was that Ministers were being inhibited from giving proper explanations of Bills, because their advisers were telling them they might be infringing on Pepper v Hart and doing all sorts of things. So the fact that this matter has been cleared up after many years is a great advantage and I congratulate the Minister on doing it.

Photo of Lord Davies of Stamford Lord Davies of Stamford Labour

My Lords, I think the whole House—and indeed the country—should be very grateful to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for having raised this important matter, the effect of which goes way beyond this Trade Bill. I am very concerned that the assurances that have been given this afternoon by the Minister apply generally to all legislation and not just to this Bill. Perhaps I misunderstood the way that the Minister expressed herself on that: perhaps when she sums up she can once again make it absolutely clear.

Obviously, if it were the case that Explanatory Notes or ministerial Statements under the Pepper v Hart doctrine could be interpreted by the courts as being the equivalent of legislation, two appalling things would happen. One is that the Government would become extremely lazy in their drafting of legislation, because they could say, “Well, we can get it all right in the ministerial Statement in the House”, or something of that sort. The second, even more serious issue would be that a lot of legislation—the Explanatory Notes concerned or the ministerial Statements—would not be subject to analysis, debate and amendment by the two Houses of Parliament. That would be an absolutely disgraceful and tragic end to this particular tendency. So what has happened this afternoon is extremely important.

It is very important that what the Minister has said to the House this afternoon should be brought to the attention of all members of the Government. Once again, I would be very grateful to her if she would just repeat that these statements—I asked her specifically about the Pepper v Hart issue, but it applies to Explanatory Notes as well—apply generally to all legislation and are not tied in any sense to this particular Bill. This just happens, by accident, to be an occasion when we have two very distinguished noble and learned Lords taking part in the debate who spotted this issue, which if it had not been dealt with could have led to very serious consequences.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, as I think the only person in the Chamber who participated in Pepper v Hart, it is right to say that the decision of the majority in that case was that statements made by the mover of an amendment or a provision explaining how that provision was supposed to operate could be referred to in a case of ambiguity in order to resolve the true meaning of the phrase. I did not agree with that for reasons which I set out and with which I will not bother your Lordships now. The decision in Pepper v Hart still stands as the legal decision. I venture to hope that it will not be used very often because it is only in a case of ambiguity that it should be used at all. If you look at the detail of Pepper v Hart, you will see that statements relied upon as being explanatory leave a certain amount to be desired.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative 4:45 pm, 20th March 2019

As far as I am concerned, the train has left the station. Obviously, I come from a business background and there are ambiguities in legislation. I have had experience of Pepper v Hart being quite useful in cases where it has not been clear, in a technical regulation, what is needed. What my noble and learned friend has said suggests that it still sits there so that you can look at what was originally said by, for example, a Minister taking a Bill through, helping the courts to clarify what is being said. I hope that the huge constitutional change that we are presiding over today does not take that away completely because, if so, we are passing something for a wider area than the Trade Bill without having looked at all the ramifications.

Photo of Lord Lisvane Lord Lisvane Crossbench

My Lords, I do not wish to detain your Lordships unnecessarily, but in a previous life I spent three years as the Clerk of Legislation at the north end of this building. One of the duties of the Clerk of Legislation is to read through the Explanatory Notes and approve them for every government Bill. A key part of that process is ensuring that there is no advocacy or advertising of the merits of a part of a Bill in the Explanatory Notes. Another factor to be taken into account is when Explanatory Notes tend to give an interpretation or an additional gloss on something that actually ought to be on the face of the Bill. With that background, I thoroughly welcome the exchanges of the past few minutes.

Photo of Baroness Fairhead Baroness Fairhead The Minister of State, Department for International Trade

My Lords, I thank the noble Lord, Lord Pannick, for reflecting his experience in this debate and for the constructive and clear conversations that we have had. I am happy to confirm to the noble Lord, Lord Davies of Stamford, and to the House that I was making a general statement. I also confirm to my noble friend Lady Neville-Rolfe that I will listen to the words of the noble and learned Lord, Lord Judge, who said that the important issue here is for clear legislation not lazy legislation, and that this is used only as a last resort and should not be relied upon.

Photo of Lord Pannick Lord Pannick Crossbench

Perhaps I might ask the Minister to confirm that, contrary to some of the comments that have been made, she is not introducing some major constitutional change today but that the rule in Pepper v Hart remains; it is a rule of law. All that she is confirming, as I understand it—the noble and learned Lord, Lord Judge, will say if he disagrees—is that the existence of the Pepper v Hart rule that in the case of ambiguity the courts can look at what was said by the mover of an amendment or a particular provision does not justify ambiguous legislation. It does not justify loose drafting. I think that that is all that the Minister is confirming.

Photo of Baroness Fairhead Baroness Fairhead The Minister of State, Department for International Trade

I am happy to confirm that that is exactly what I meant. I do not, I believe, have the power to overturn Pepper v Hart, nor am I minded to do so. However, I want to confirm as a general statement exactly what the noble Lord, Lord Pannick, has articulated. It has been of huge benefit to the House to address, as the noble and learned Lord, Lord Judge, mentioned, two heresies and I am grateful to my noble and learned friend Lord Mackay of Clashfern, who has supported us in getting to this stage. I also thank my noble friend Lord Wakeham for his words of welcome, and I have taken on board the comments of the noble Lord, Lord Lisvane. I am happy to take back, through the officials, the request of the noble and learned Lord, Lord Judge, to reflect to my colleagues continuing concern over phrases such as “among other things”.

The work on this amendment has been an illustration of the very best of the experience of this House. I hope that the detailed reassurances I have provided will allow the noble Lord, Lord Pannick, not to move his Amendment 6.

Amendment 5 agreed.

Amendment 6 not moved.

Clause 11: UK participation in the European medicines regulatory network