I thank my noble friend the Minister for the letter which we received during the course of this morning. I am slightly concerned that he did not reply to the question on the fact that the Scottish Parliament has withheld its consent, or tell us the Government’s response to that, nor to the amendments that the Scottish Parliament has laid on the table. I would be grateful if at some point that could be addressed.
In speaking to the amendments in my name in this group, I will speak also to those tabled by the noble and learned Lord, Lord Hope, which I have also signed. I would like to say a general word about Clause 7, on the role of the courts. I am grateful to the Law Society of Scotland for preparing me on the amendments that I have tabled today. This clause deals with Section 6 of the European Union (Withdrawal) Act, which dealt with the interpretation of REUL and the application of retained case law by domestic courts.
The amendments tabled to Clause 7 are quite complicated and convoluted. I would hazard to say that it is difficult to understand the effect of the amended provisions. Therefore, the amendments that I have put forward should make it clearer that, if Clause 7 simply substituted a new Section 6 of the European Union (Withdrawal) Act, the new Section 6B, which Clause 7(8) proposes to insert into the European Union (Withdrawal) Act, would provide that UK or devolved law officers could make a reference to the Supreme Court, the High Court of Justiciary or the appropriate relevant appeal court, as defined by proposed new Section 6A and the circumstances set out therein.
Even though new Section 6B(7) provides that any decision by the court to which reference is made does not affect the outcome of the proceedings, the view of the Law Society of Scotland, which I share, is that it is contrary to the interests of justice that the law officers can be empowered to make a reference in a civil case that has been concluded and where there has been either no appeal or the appeal itself has been concluded. This contravention of the principle of finality and interference by the state in civil litigation needs to be explained and justified by the Government; I urge my noble friend the Minister in summing up to take the opportunity to do so.
I understand that the innovation would apply only on a point of law on retained case law, thus diluting the unity of civil law. Further, any such power of reference would not be comparable, for instance, to the role of the Attorney-General or the Lord Advocate in criminal proceedings. Such law officers have a direct interest and an integral role to play in all such proceedings, including instituting appeals or references on points of law. Law officers do not currently have that role in civil proceedings and it remains to be seen why they should have it in respect of one particular category of civil case law. Again, I seek clarification from my noble friend.
New Section 6B(2) identifies the law officers who can make a reference. The Lord Advocate’s power to make a reference is limited to where the point of law relates to the meaning or effect of relevant Scotland legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or a matter of law on reserved matters. Again, the Law Society questions whether it is appropriate that any UK law officer other than the Advocate-General for Scotland should be able to make a reference to the High Court of Justiciary or a relevant appeal court, which is the Scottish court, on a matter of legislation. I refer to Taylor Clark Leisure plc v the Commissioners for Her Majesty’s Revenue in 2015.
New Section 6C provides that each UK law officer and devolved law officer is entitled to notice of proceedings. The Lord Advocate’s power to intervene is limited to where the argument relates to the meaning or effect of relevant Scottish legislation. There is no corresponding restraint on the powers of any UK law officer to either the law of England and Wales or to the law on reserved matters. Again, I question whether it is appropriate that any UK law officer other than the Advocate-General for Scotland will be able to intervene on a matter of Scottish legislation before the High Court of Justiciary or a relevant court of appeal, which is the Scottish court. I hope the Minister will take the opportunity to clarify those points.
On Amendment 81, Clause 7(3) as currently drafted introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors when deciding whether to depart from any retained EU case law. It is the view of the Law Society of Scotland, and I share that view, that the courts must be able to exercise discretion when deciding such matters, and that a statutory obligation to consider these matters is an unjustifiable intrusion on judicial independence. I therefore hope the Minister and the Government will accept leaving out “must” and replacing it with “may” in Clause 7 in that regard.
Amendment 82 would delete new subsection (5)(a) that Clause 7 currently inserts into Section 6 of the European Union (Withdrawal) Act. Again, as currently drafted, Clause 7(3) introduces a new subsection (5) into Section 6 of the European Union (Withdrawal) Act requiring the judiciary in a higher court—that is, the UK Supreme Court, the High Court of Justiciary and a relevant appeal court, as defined in Clause 7(6)—to have regard to certain factors in deciding whether to depart from any retained EU case law. One of those factors is contained in new subsection (5)(a):
“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.
In the view of the Law Society of Scotland, judges are well aware that decisions of foreign courts are not, unless otherwise provided, binding. Therefore, in the society’s view, and I share that view, it is unnecessary to prescribe that the judiciary take the matter into account, and I recommend on behalf of the Law Society of Scotland that this provision be deleted from Clause 7.
Amendment 84 would delete “proper”. The reason for that is that the courts must be able to exercise discretion in deciding such matters as set out in Clause 7(3) when deciding to have regard to certain factors to depart from any retained EU case law. Creating a statutory obligation on the courts to consider how retained EU law constrains the proper development of domestic law imposes an unachievable objective on the judiciary by requiring judges to assess what the development of the law might be and to determine whether that development will be “proper”. That is essentially a matter of policy, which is the province of government rather than the judiciary.
I would like to briefly refer to the points raised in Amendments 95 to 99 in this group from the noble and learned Lord, Lord Hope of Craighead, as well as Amendment 99A, which go to the heart of the role and function of the Lord Advocate and the particular arrangement that pertains to what Scots law should be in this regard. I omitted Amendment 94, which, again, is a consequential and probing amendment seeking to delete new Section 6B. I look forward to hearing from other noble Lords who will speak to amendments in the group, but with those few remarks, I beg to move Amendment 81.
My Lords, I agree with what has just been said by the noble Baroness, Lady McIntosh, and I speak only with reference to the Court of Appeal of England and Wales, of which I was a member for about nine years. We regularly considered cases from all over the world—the High Court of Australia, the Supreme Court of the United States, the Hong Kong Court of Final Appeal, or any court that had similar law to the law of England and Wales. We considered them, but none of them was, or is today, binding. It is absolutely unnecessary to put this in, and I have to say I find it offensive to judges who have treated these cases in the way I have just explained for many years. I was on the Bench for 35 years, and I looked at these cases many times. I would be offended to be told I could not apply them as part of English law, because I knew that from my childhood, for goodness’ sake.
My Lords, I am going to speak briefly about Amendments 83, 84, 87, 87A and 87B. I do so as a jobbing barrister, with some diffidence, because I note that the noble and learned Lords who have put their names to these amendments have not yet spoken. Indeed, I do not think they are in the Chamber. I am against the provisions in the Bill, and I am going to outline my reasons.
When drafting legislation, we need to ensure clarity. Laws need to be clear, unambiguous and capable of being understood by members of the public, otherwise compliance is impossible. Furthermore, to ensure justice, advisers need a degree of certainty and predictability as to what the law is or is likely to be when they have to advise on it, otherwise, as I say, justice will not happen. When one applies those criteria to the provisions in the Bill, one becomes profoundly uneasy. The phrase found in new paragraph (b) in Clause 7(3), “any changes of circumstances”, is astonishingly broad. It would apply to any change of circumstance without any regard to degree or nature.
The same sort of criticism applies to new paragraph (c), on
“the extent to which the retained EU case law restricts the proper development of domestic law.”
But what do we mean by “proper development” of domestic law? Who is to judge what is proper? Are we to contemplate judge-made or statute law, which are extraordinarily different? Does this concept not drag judges into political and perhaps partisan areas? A determination by a judge on what the law ought to be is, in many senses, to intrude into a political decision that judges would be well advised to avoid.
Precisely the same criticisms apply to the word “influenced” in new paragraph (a) in Clause 7(4), to which Amendment 87 applies. They also apply to the phrase “would depart”, to which Amendment 87A applies. Giving practical interpretation or advice on the meaning of these words is almost impossible, which inevitably impacts on compliance by individuals and the doing of justice by the courts. For the reasons that I have briefly outlined, these proposed provisions, as presently incorporated in the Bill, are profoundly objectionable and should not feature in this legislation—but, in conclusion, I say that this applies to the entirety of the Bill.
My Lords, as a result of the lack of time to address the amendments to Clause 7 last Thursday, the noble and learned Lords, Lord Judge, Lord Hope and Lord Thomas of Cwmgiedd, are not able to speak to the amendments to Clause 7 in their names. As your Lordships will see, I have been asked to do so on their behalf. These are Amendments 83, 87, 87A, 87B, 90, 91 and 93. I will also support Amendments 85 and 88 in the name of the noble Baroness, Lady Ludford. A number of these amendments are quite technical so, rather than weary the House with detailed observations on each of them, I will take a broad approach, in the hope that the Minister will permit a meeting when the others can be elaborated further.
Broadly speaking, the amendments fall into two parts, the first of which comprises amendments to the provisions in Clause 7(3) and (4), about the circumstances in which the court may depart from retained EU case law and retained domestic case law—these are Amendments 83 to 89. The second group concerns the procedure on references of points of law arising from retained law in lower courts or tribunals—this is in Clause 7(8). Like many of the earlier provisions of the Bill that were discussed, the issue of legal certainty runs through the first group of amendments. They either involve removing provisions that create uncertainty, or invite the insertion of new provisions to bolster certainty and predictability. The noble Viscount, Lord Hailsham, referred to one of the most egregious of these tests: that of
“any changes of circumstances which are relevant to the retained EU … law”— this is in Clause 7(3), which inserts new Section 6(5)(b) into the 2018 Act. I also cite another test:
“any changes of circumstances which are relevant to the retained domestic case law”— this is in Clause 7(4), which inserts new Section 6(5ZA)(b) into the 2018 Act. These are too wide, too uncertain and, above all, subjective.
Looking at the issue from a slightly different perspective from those that have been debated in the past, I will concentrate, in broad terms, on the position of UK plc. Legal certainty is critical to the position of the courts of this country as one of the most important litigation centres in the world. The United Kingdom attracts international disputes of huge value and complexity because of the intellectual standard of the judges in our higher courts, the absence of corruption in the judiciary and, critically, the predictability and certainty of our legal principles.
This is true not only of general business cases but of particular specialist areas, such as intellectual property. These cases contribute very large amounts to our GDP through the engagement of lawyers, bankers, accountants, experts and other relevant disciplines. In its report, published on
“Legal services contributed £30.7 billion to the UK economy in 2021”, posting a trade surplus of £5.4 billion, and:
“Parties from 75 countries used the Commercial Courts in 2021/22”.
Unpredictability and uncertainty in the law and dispute resolution put this pre-eminence at risk. As a country, we cannot afford to allow that to happen.
In large international cases, the claimants usually have a choice of places in which to litigate. The idea that existing law can be departed from because of any changes in circumstances which the court may consider relevant—which could include, for example, the political manifesto or aspirations of the Government of the day or some new government policy—would greatly undermine the attractiveness of this jurisdiction.
I will illustrate this briefly by reference to what, in the case of many major businesses, is one of their most important assets: their intellectual property. Our trademark law is derived entirely from EU law. Our Trade Marks Act 1994 gives effect to an EU directive. Since its enactment, the case law has been determined partly by EU case law, especially where there has been a preliminary reference to the Court of Justice of the European Union or an appeal to the Court of Justice of the European Union from the EU Intellectual Property Office, and partly by our domestic law in interpreting and applying the 1994 Act. In fact, there is a huge body of EU law relevant to trademarks; it therefore falls squarely within Clause 7 of the Bill and the amendments to the 2018 Act introducing the “any change of circumstances” test.
Large international companies, such as Sony, Nokia, Eli Lilly or Pfizer, to name but a few, which conduct their business in many countries across the world, generally have a choice as to the country in which they wish to bring their proceedings. Although, strictly speaking, each country can only make decisions limited to its territorial boundaries, a decision in any one of the major IP litigation centres, such as France, Germany, the Netherlands or the United Kingdom, will be accepted as determinative everywhere. The fact is that, if there is a broad, unlimited “change of circumstances” principle for departing from the existing law, one of the parties to the litigation will almost always invoke it. If they do so, and do so successfully, there is absolutely no certainty as to what would replace the existing law. All this would fatally undermine the certainty of our law and be a huge disincentive to litigating in this country when another is available.
The same is equally true of design law and registered designs. In this country, that law, set out in the Registered Designs Act 1949, has been substantially rewritten, particularly in relation to what is a registrable design, to give effect to an EU directive. This is also true of large parts of our law relating to copyright. The word “influenced” in the proposed new Section 6(5ZA)(a)—see Amendment 87—has been referred to earlier in today’s debates. It would, in some trademark, design and copyright cases, be difficult now to disentangle which parts of the law have been influenced by EU law and which are purely domestic in origin.
In the area of patent law, the same position applies in relation to supplementary protection certificates, which operate to extend the patent in certain circumstances. Litigation in these areas of the law can be of huge value and economic significance.
Finally, on this group of amendments, I refer to the statement in paragraph 114 of the Explanatory Notes that the new test for departing from retained EU case law mentioned in Clause 7(3) reflects
“some of the factors which the Court of Appeal in England and Wales took into account in deciding whether to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK Ltd & Anor  EWCA Civ 441.”
That is, at best, a rather misleading comment. That case concerned a breach of copyright, which turned on the meaning and application of the restriction on a person under Section 20 of the Copyright, Designs and Patents Act 1988 regarding “communication to the public” of such things as a musical work, sound recording or broadcast in which the copyright, or an exclusive licence to the copyright, was held by another person. The expression “communication to the public” derived from an EU directive. The issue arose as to whether the court should depart from retained EU law on that restriction. Contrary to the impression given by the Explanatory Notes, there was no statement in any of the three judgments of the Court of Appeal to suggest a broad and unlimited “change of circumstances test” as is now proposed. In fact, the argument for departing from the existing case law was almost summarily dismissed, with all three judges agreeing that to depart from retained EU law would create legal uncertainty for no good reason.
I turn to the second group of amendments, which concern references on retained law by the lower courts or tribunals. Clause 7(8) specifies two situations in which the Supreme Court or some other appropriate appellate court must accept the reference—I emphasise “must”. I am afraid that these provisions were not drafted by a person with any litigation, let alone judicial, experience. The courts have always had the ability to manage cases and try a preliminary point of law. No court, however, has ever been compelled to do so. Compulsion on an appeal court to hear part of a case, whether it be a preliminary point of law or some other issue in trial, is fraught with danger. There may be all kinds of matters which make it unsuitable for the Appeal Court to hear that issue at that time. Experience shows that where the point is not dispositive of the whole case, an appeal on a preliminary issue—a point of law—can simply prolong a case and increase expense.
By way of further illustration, a higher appeal court may be about to consider a similar issue. There is no good reason to treat a preliminary point of law relating to retained case law differently from any other. The overriding objective under the court rules requires courts to manage cases efficiently and justly. The appeal courts can do so only if they have a discretion as to how to deal with matters such as applications for references of points of law arising on retained case law.
As I have said, I hope the Minister will agree to a meeting in which these and other related points can be further explained and explored.
The Committee will be aware that I am not a fan of this Bill because it marginalises Parliament. Therefore, I was pleased to be able to put my name to and speak to the group of amendments beginning with Amendment 32, moved by the noble and learned Lord, Lord Judge, and also spoken to by the noble Lord, Lord Lisvane.
I have to say, as I said the other evening, that I sometimes find that we seem to be facing in all directions. I mentioned before about how one group of people were concerned to get clarity as soon as possible and therefore wanted to foreshorten the sunset clause. There were others who wanted to have time for consultation to bring people along and therefore lengthen the sunset clause. I never quite heard a serious reconciliation of those points of view.
I have to say that on this group of amendments, I have the same concern. I recognise that I am putting my head into not one legal lion’s mouth but several simultaneously, and I do so with due care, not being a lawyer. First, I note the emphasis on the importance attributed to certainty, clarity and predictability. That comes up in Amendment 85, in the names of the noble Lord, Lord Anderson, the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Ludford. It is referred to again in Amendments 86, 88 and 89. I get that: even I, as a non-lawyer, can see that certainty, clarity and predictability are quite important.
Then I look at some of the other amendments—Amendments 81, 90 and 92—and I see that we are changing “must” to “may”. As a non-lawyer, I feel that “must” to “may” does not increase predictability and clarity. Then, in Amendment 91, we have
“ought to be considered at that time”.
That seems to me, from the point of view of clarity and predictability, to run in completely the opposite direction. Where we had, in paragraph 4, on page 7, “a court must”, it is now “a court may”, and to the end of that is added
“and ought to be considered at that time”.
I am happy to be corrected because I am not a lawyer, but as a non-lawyer this seems to me to be running in both directions, and not to have the sort of clarity, predictability and certainty that I can quite understand. It seems to muddy waters that a previous series of amendments had sought to clarify.
My Lords, I shall speak to Amendments 85 and 88, as a co-signatory of both those amendments, led by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot be here today. He has been kind enough to share his thinking with me.
And his notes, indeed, although any use I make of them is entirely down to me.
I want to start by reflecting that in the last group, the noble Lord, Lord Callanan, who is no longer in his place, rather airily dismissed a question from the noble Lord, Lord Kerr, who was seeking to find out what “domestic principles of interpretation” means. The noble Lord, Lord Callanan, said, “Oh, it is quite clear: the courts know what ‘domestic principles of interpretation’ means”. Fine, we rely on the courts, as we do. I think it is an answer to the noble Lord, Lord Hodgson: the courts know what they are doing, so if we use the word “may”, that is predictability, because the courts generally follow precedent and know what they are doing. If we tell them they “must” do something, that actually constrains them in a rather awkward and unpredictable way. That is my understanding, anyway. I found the contribution of the noble and learned Lord, Lord Etherton, masterful.
The Minister told us in discussing the last group that the courts know what they are doing, but in Clause 7 they are told what to do by the Government. As I think the noble and learned Lord, Lord Etherton, said, the drafting appeared to lack any litigation or judicial experience. The noble and learned Baroness, Lady Butler-Sloss, pointed out—I cannot remember her exact words, but I interpret what she said—that she found it rather impertinent of the Government. I may be over-reading what I heard, but the courts know what they are doing and the Government come along and are prescriptive about what they are allowed to do. Arguably, Clause 7 is unnecessary, but the amendments seek at least to improve it. By the way, I am grateful to the Law Society of Scotland for pointing out that the amendments to Clause 7 are pretty complicated and convoluted, and it might have been better just to provide an alternative text to substitute a new Section 6 of the EU withdrawal Act, rather than making pages of amendments.
The fact is that the higher appeal courts are already not bound by retained EU case law and can depart from it if it is right to do so. This test is well established, having been set out in the House of Lords Practice Statement in 1966. As the noble and learned Lord, Lord Etherton, said, the Court of Appeal comprehensively considered the power to depart from retained EU case law in the case of TuneIn Inc v Warner Music UK. It considered various factors but decided not to depart from retained EU case law. You would get another impression from government explanations and commentary.
The courts in this case, and in other scenarios, have made comprehensive analyses and have given balanced reasons why and when the courts should or should not overturn settled case law. One of the things cited in that Court of Appeal case was the need to balance the need not to
“unduly restrict the proper development of the law” with
“too rigid adherence to precedent.”
They are conducting that balancing exercise, but they drew particular attention to the special need for certainty in the law. Therefore, they gave legal certainty a particular value which must not be overlooked.
I am listening carefully to what the noble Baroness is saying, but it has nothing to do with “predictable”. Everything she is saying about the way the law works is unpredictable because it depends on how the courts interpret it at the time. The idea that we are putting the emphasis on predictability in these amendments seems to me to be inaccurate.
I trust the courts; clearly, the noble Lord does not. I believe that the courts do know what they are doing, and that we have an extremely experienced and valuable judiciary. That is why, as the noble and learned Lord, Lord Etherton, pointed out, lots of people come here to use the UK courts, particularly in London. The Government do not seem to have given any consideration to the fact that they are undermining the extremely valuable legal services that London sells to the world. They did not give consideration to service industries during Brexit generally, but this one brings in a lot of money for the UK economy and is being totally undermined, not least by this Bill.
Legal certainty was given a particular value by the Court of Appeal, but the Bill overlooks it, as many noble Lords have said, and detracts from the courts’ ability to do their job. In the notes from the noble Lord, Lord Anderson—which, as the noble Viscount, Lord Hailsham, pointed out, I do have—he points out that Amendments 85 and 88 in his name are very moderate. Amendment 85 leaves intact the power of the courts to depart from retained EU case law, and Amendment 88 would retain domestic case law. They even leave intact the three factors the Government wish them to have regard to. The noble Lord says that he is persuaded, having seen Amendments 83, 84 and 87, that those factors—if they are to be kept—really need to be amended, as suggested by the noble Baroness, Lady McIntosh, and the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The factors specified in the clause at present each militate in favour of departing from existing law. It seems to have been concluded that the judges require a powerful shove in the direction of the unknown. That is another seam of this Bill: we are jumping off a cliff edge and into a void.
All this is the antithesis, as has been said several times—the noble Lord, Lord Deben, who was interrupted at one point by the Government Front Bench, said how un-Conservative this Bill is. It requires leaps into voids and unknowns and off cliffs—
The noble Viscount is absolutely right, and I agreed with every word of his earlier contribution.
What the amendments do, instead having of a one-way impetus to the judges, is to introduce some balance to the exercise. Both these amendments would introduce two factors—they are repeated for the two scenarios—which might incline the judge in favour of caution:
“the consequences of disturbing a settled understanding of the law” and
“the importance of legal certainty, clarity and predictability”.
The amendments give the judges more space for their judgment, which is—I am quoting the notes of the noble Lord, Lord Anderson—“after all what judges are for”. What is the point of having judges if all they have to do is read the Retained EU Law (Revocation and Reform) Bill? Good luck with that.
Then the noble Lord, Lord Anderson, says of the quotation and reference in the Explanatory Notes to the Court of Appeal case of TuneIn Inc v Warner Music Ltd that “this, I am afraid, is disingenuous and I do hope the Minister will not repeat it from the Dispatch Box”. I am looking at the Minister—the noble and learned Lord, Lord Bellamy—and hoping that he does not do that, because TuneIn was a case in which the Court of Appeal decided not to depart from the jurisprudence of the CJEU for a number of reasons which were carefully enumerated. One decisive factor was that to
“return to the drawing board and start all over again … would create considerable legal uncertainty”.
So, the judges are stressing continuity, predictability, being able to weigh up factors and not being constrained. I say to the noble Lord, Lord Hodgson, with respect, that he has got this wrong: if you say that the judges must do something and allow them to take into account only certain factors, it does not allow them to exercise their training and judgment. That is what we pay them for: to continue the law to provide the predictability that we need.
I finish by conveying that the noble Lord, Lord Anderson, wanted to register his strong support for Amendments 90 to 93 in the names of the noble and learned Lords, Lord Hope, Lord Judge and Lord Thomas. The noble Lord, Lord Anderson, said: “They know a thing or two about the pressures of business in the highest courts, and this Bill is going to create a tsunami of business for lawyers. A sturdy floodgate is needed if those courts are not to be swamped, and these amendments provide one.” I respectfully recommend these amendments to the Committee.
My Lords, your Lordships may have noticed that there is a rather cruder amendment in my name towards the end of this group: Amendment 99A. I am not a lawyer, but much of my life in politics and trade unionism and as a consumer champion has been defined by decisions of the British courts—some of the most important of which have been influenced by European law or by the judgments of the European courts. The advances we have made on equalities, employment rights, a number of consumer items and the environment, and indeed on issues such as intellectual property and digital protection and so forth, have been in large part—not entirely; I will not overstate the case—affected by European law, now called retained EU law, or the European courts’ own judgments which have been followed by the British courts.
In the exchange between the noble Lord, Lord Callanan—he is not here at the moment; I welcome the noble and learned Lord, Lord Bellamy—and the noble Lord, Lord Krebs, the noble Lord, Lord Callanan, said that the courts will go on interpreting cases as they have done from time immemorial. However, from time immemorial, the courts have interpreted the law on the basis of what is on the statute book at that time. They continue to do so until that law is changed by this Parliament. The implications of parts of Clause 7 are that that will no longer be the case; that the courts will need to have less regard to the types of cases that arose because they were influenced, at least in part, by European law; and that European decisions will not need to be held in the same regard in future. That is the purpose of Clause 7, which is why my amendment would delete it.
I largely agree with the noble Baroness, Lady Ludford, that it could be rewritten—we do need some guidance on case law—but this is taking it in entirely the wrong direction and destabilising what has, from time immemorial, been the basic role of the British courts in interpreting legislation. If the Government and Parliament change the law, that changes it; some of those cases no longer have the same effect as they do at the moment. However, if we take Clause 7 as it stands, we are undermining a number of improvements in the conditions of our people and, at the same time, undermining the credibility, consistency and historical role of our courts. I therefore suggest to the Government that they should remove this clause. If the Bill proceeds—noble Lords know that I am not in favour of it—the Government could come back with a rather more sensible Clause 7. However, as it presently stands, it is one that we ought to oppose root and branch.
The role of our legal system is being undermined by a political doctrine that has yet to find its way into the legislation and the statutory law of our land. That is a dangerous road that we should not go down; I therefore suggest that we remove Clause 7 and think again.
My Lords, I have no legal training, so I going to rely on noble and learned Lords to tell me whether I have understood this whole section properly. It seems a bit odd.
In contrast to the first clauses of this Bill, which have been designed by the Government to take power away from Parliament—all the decision-making process and scrutiny—Clause 7 seems designed to outsource the task of making sense of the huge legal mess in the Bill. It is wrong on many levels but, in particular, it calls on judges to make political decisions that Parliament ought to take instead. The Bill is potentially going to create a huge legal mess; it does not seem fair for the Government to outsource this issue. That is worrying enough on its own, but it is all the more worrying because of the way in which this Government have demonised lawyers and judges over the past two or three years. They have been scapegoated at every twist and turn of the Brexit process. It has been a nightmare to see people who clearly have our best interests at heart being demonised in this way.
Clause 7 seems to have a very specific purpose. Forgive me if my language is oversimplified but, quite honestly, the Government are making a huge legal mess and are going to ask other people—judges, lawyers and the courts—to sort it out for them so that those people will take the blame when it all falls apart. Can the Minister explain whether I have understood it properly?
My Lords, I have been looking forward to this group of amendments because I thought that this might be the moment when we got to the nuts and bolts of how this is all going to work. It is a real pleasure to see the noble and learned Lord, Lord Bellamy, in his place for this group. We welcome him and hope that he can provide some clarity on the Government’s intentions here. I have tabled a couple of amendments but all the amendments in this group attempt a similar thing, which is to neuter Clause 7 to some extent and, should Clause 7 persist, to balance out some of the instruction to courts.
There are some very helpful amendments, particularly those tabled by the noble Lord, Lord Anderson, which have been referred to by others. What troubles me most about this is that we are endangering the legal certainty, clarity and predictability that are so important. The problem is that retained law will now be reinterpreted. Law can now be given a fresh interpretation so that laws which are still in force as of
From the citizen’s point of view, a major requirement of law is that they know what the law means. If we pass this Bill, that requirement no longer applies to this section of law—in respect of huge swathes of important regulations, from environment and employment to product safety and consumer protections. I will not go into all the examples that we have been talking about on previous days, but the Minister will know what I am trying to get across to him. We just do not know what the effect of this will be. It is impossible to tell from the Bill as it is drafted. The Government cannot possibly know either. They cannot know today, when they are asking us to consider this legislation, the effect that applying different canons of construction will have on thousands of pages of regulation. No Government could think that the best way to remove EU law is to replace it with law the meaning of which is yet unknown. That was my understanding of this, and I am grateful to my noble and learned friend Lord Falconer of Thoroton, who took time yesterday to talk to me about this, to ensure that I was getting this right. This is the situation as he sees it as well. It is quite extraordinary.
I note the remarks of the noble Baroness, Lady McIntosh, on the coherence of civil law, which no one else has referred to. I had not considered this before listening to her speech. She made an important point there. Her points about Clause 7 in relation to the operation in Scotland are also important and it would be very useful if the Minister could respond to those specifically.
We have had some great experience brought to this group, not least by the noble and learned Baroness, Lady Butler-Sloss. It would be wise of the Minister to respect that contribution, which I am sure he will. The noble Viscount, Lord Hailsham, asked: who will judge what is proper? This gets to the heart of this clause and why we are concerned about it. Who will decide, and by what criteria? Clause 7(4) says:
“A higher court may depart from its own retained domestic case law if it considers it right to do so having regard to”, before going on to list other things.
We are concerned about this because of the vagaries of how a court would be expected to understand what is meant by it. Courts are asked to have mind to
“any changes of circumstances which are relevant to the retained domestic case law”.
But I do not understand what courts are meant to do with that. How are they going to decide what is relevant and what is not, and the extent to which retained domestic case law restricts the proper development of domestic law? Again, I am not sure what the Government mean by that and how a court is expected to make a decision on the back of it.
That is why noble Lords who have amendments in this group have attempted to insert additional criteria, to make sure that a court is required to look at what we have expressed as
“the undesirability of disturbing settled understandings of the law”.
This is all about getting back to clarity. As I have said before, it is about making sure that citizens and those giving advice know what the law is.
It is regrettable that some noble and learned Lords, who I know wanted to take part in this debate, in particular, have not been able to. It is one of the problems with the Government underestimating how much time we would need for the Bill. On reflection, it was probably a little unwise to allow us three days. I understand that the next day we have been given to debate the Bill is Wednesday, so will the Minister make sure that we have all the information we need, particularly on the search process for retained EU law that was referred to in the letter we received last week from the noble Baroness, Lady Bloomfield, and committed to by the noble Lord, Lord Callanan, in the letter we received from him on Friday? He made a commitment that we would receive the information we need about how retained EU law is to be identified and included in the dashboard, but we have not had that yet. Wednesday may be our last opportunity to ask the Minister questions on that so it is quite important that we have that information before we next meet.
As the noble Baroness, Lady Ludford, and somebody else—forgive me for not noting who—said, it is a problem if cases have been inaccurately referred to in the Explanatory Notes. That is a concern, so it would help if the Minister could comment on this and perhaps take the opportunity to correct it or, if we have misunderstood, to justify the inclusion of the case referred to. That would be helpful.
I thank all noble Lords who have tabled amendments in this group. I will start with some general comments and observations on Clause 7 and thereby deal also with Amendment 99A, tabled by the noble Lord, Lord Whitty, which would remove Clause 7 altogether.
In short, Clause 7 gives higher UK courts greater flexibility to depart from retained EU case law than is currently the case. I emphasise first that we are talking about appeal decisions. First-instance courts continue to be bound and that is an important part of any answer to the points raised about legal certainty. Currently, the Supreme Court or the High Court of Justiciary in Scotland, and other higher courts, must apply the same tests that they would apply if departing from their own previous case law.
Clause 7 lowers the bar somewhat. It provides that, in deciding whether to depart, the court must have regard to, among other things, the principle that decisions of a foreign court are not, generally speaking, binding in UK courts; any change of circumstances relevant; and the extent to which retained EU case law restricts the proper development of domestic law. I will come to the point made by the noble and learned Baroness, Lady Butler-Sloss, and to the questions of change of circumstances and the word “proper”, in a moment.
That is a lower bar than is currently the case. It does not necessarily imply a cliff edge or any floodgates; it is looking ahead. We do not know what circumstances will arise as the next 20 or 30 years pass, how things will change and whether existing retained EU case law should be followed. The clause essentially says that it is for the higher UK courts to determine how that case law should develop and that it is not the case that previous EU case law can be changed only if the ECJ says yes. Without such a mechanism it is difficult to credibly say that one has withdrawn from the EU, so, in the Government’s view, some such mechanism is needed.
That is the first and general point. The second is that much, but not all, retained EU law is highly influenced by a context that is no longer relevant to the UK: for example, the need to promote among the 27—previously 28—member states the free movement of persons, goods, services and capital, and to protect the single market. All of that is reflected in the case law. There is also the common agricultural policy; the quite different institutional structures of the EU, notably the role of the Commission; the, if I may say so, laconic nature of much EU legislation; and the inevitable challenge of finding a common denominator among so many different legal traditions, languages and national backgrounds while, internally, working entirely in French.
One can pay the highest tribute to the way that the CJEU has navigated these difficulties over the years, and I readily do. But it does not follow that case law developed in those circumstances is necessarily suitable for the UK in the future, particularly in a fast-changing world with such things as the digital economy, artificial intelligence, climate change, genetic science, data protection and so forth. These present novel challenges all the time. In the Government’s view, the UK’s higher courts should be fully equipped to deal with them without being constrained by EU jurisprudence if they feel that they should depart therefrom.
Thirdly, if your Lordships will forgive me saying so, we have in this country a pearl beyond price: the common law. It has nurtured and protected us for centuries and has successfully taken root all over the world. By some measures, it is the world’s most widely used legal system. I was asked whether I would refer to the Warner Music case, which is referred to in the Explanatory Notes. The only reference I will make to that case is that made by the Master of the Rolls, the right honourable Sir Geoffrey Vos, who observed that the CJEU is “very far” from being a common law court. In other words, it is a quite different animal from the courts that we traditionally have in this country. We could spend much time philosophising but, in my humble experience, the continental legal tradition places emphasis on identifying abstract legal principles from which a solution may be deduced, while the common law starts from the other end, as it were, with the facts of a particular case and how those facts relate to other decided cases and the legislation in question. The art of distinguishing cases and building a legal system via a mosaic of interrelated cases has been perfected over the centuries by the judges of this country and other common law jurisdictions.
A very experienced solicitor working in a deprived part of north London said to me, when he heard that I had some previous association with the EU, “Don’t let them weaken the common law.” The common law is a people’s law. It comes up from the bottom; it does not come down from the top. In the Government’s view, it is very important that we never underestimate, underplay or weaken the great common law tradition that we have in this country.
That forms an essential part of the background to this clause, which is essentially to enable our judges to use the best of the common law traditions to take us forward. The Government are not saying that any one approach is better than another, only that the common law is in our DNA. Clause 7 will reinforce the common law tradition and allow it to flourish.
That being the essential rationale, I turn to the various amendments suggested to modify the new tests as set out in the Bill. I will first comment on the theme of legal certainty. The common law, as it has developed, has always been fully aware of the need to preserve legal certainty, but that has not inhibited the proper development of the law as the needs arise—I will come to that in a moment. It is always a question of balance. If one bakes in or gives priority to legal certainty one would never change anything. Legal certainty will of course remain an important circumstance, as it was in the Warner Music case—no doubt judges will have regard to it; it will be up to them—but we cannot say that legal certainty means that we have to slavishly follow old EU jurisprudence until the cows come home just because of legal certainty. We have to find a balance. That is one factor among others, but not necessarily a dominant factor.
I turn to the specific amendments. Amendment 81 was moved by my noble friend Lady McIntosh. I am not completely sure that we have in this group all the amendments to which she originally referred in her speech, but we will sort that out through the usual channels, if we may. Amendment 81 would reduce the “must” have regard to “may” have regard. In the Government’s view, this would again tend to bake in the existing situation and enable the courts to ignore changes of circumstances, and to not allow or to continue in a state of undue deference to the Court of Justice in Luxembourg.
I say “undue”, by which I mean that some deference is clearly highly necessary. In particular, as the noble and learned Lord, Lord Etherton, said, parts of our law where the statute is essentially an EU creation may well be different situations from other parts of the law. I agree, although I am bound to say, on the legal certainty and accessibility of case law to the general public points, that I very much doubt whether any member of the public, having fought through the 25 often conflicting decisions of the Court of Justice of the European Union on the question of communication to the public, which is the subject matter of the Warner Music case, would be much the wiser when it came to working out what the law was. However, that is another matter.
The Government do not support reducing “must” to “may” because that would tend to bake in the influence of the European courts on the judgments of our domestic courts as the years pass. I should point out in passing that even in the common-law family, whether in Australia, the US, Canada or this country, great divergences have emerged over the years. They should be allowed to emerge. We should not be in a mindset where legal certainty stops development.
That takes me to Amendment 82, which suggests omitting the words
“the fact that decisions of a foreign court are not (unless otherwise provided) binding”.
I say at once to the noble and learned Baroness, Lady Butler-Sloss, that the Government had no intention of any form of impertinence to the Court of Appeal or other experienced judges who will know that the judgments of foreign courts are not binding. What this does is emphasise exactly what she was saying: you look at cases in Australia, Canada, US and the EU, and you come to a view. All we are saying in the Bill is that this is the process we expect to happen, not any knee-jerk reaction to the extent that we must follow Luxembourg. We are not preserving in aspic all the existing case law of the EU. Therefore, we feel in relation to Amendment 82 that the judgments of the European Court of Justice, although very possibly highly persuasive and possibly even in some cases decisive, should be in principle treated as the judgments of other relevant jurisdictions.
That takes me to Amendment 84, which is essentially to omit “proper” from,
“the proper development of domestic law.”
This is, if I may say so, a term of art. It has been used in case law ever since the House of Lords decided in 1966 to diverge from its previous decisions. It was referred to by Lord Reid. That is not the present noble and learned Lord, Lord Reed, but James Reid, the brilliant Scottish judge; possibly interestingly for Scotland, the best common lawyer we had in the previous century was Scottish. “The proper development of the law” means what the courts feel is the right way to take the law at that particular moment. If you say “restricts any development of domestic law”, you are back where you started because any existing case law in a sense restricts development, so it is necessary to have the word “proper” in the statute.
My Lords, the courts are always astute. They sort of intuitively know where they have to stop and where Parliament has to take over. That is a process that has been honed and refined for the past 100 years at least, but it does not prevent the courts moulding, refining and developing the common law. There comes a point where you cannot go further, but quite often in a court you can, especially when you have existing jurisprudence. It is quite early on in the development of a new technology. In the Warner case, we were talking about hyperlinks, graphic interfaces and all sorts of high-technology things with which I am sure your Lordships are extremely familiar, but it is a new area of law, and the courts, generally speaking, work with that until they find that they have gone as far as they can as a court and then Parliament takes over. With respect, I would not completely accept the observation of my noble friend Lord Hailsham that this is usurping Parliament.
I think I understand the Minister’s argument about “proper” in new paragraph (c) in Clause 7(3), but is the wording of this not prejudicial because it assumes that retained EU law restricts the proper development of domestic law? It does not say that the court should consider whether and to what extent retained EU law restricts the proper development of domestic law. It says that it should consider the extent to which it does, assuming that it does. Would it not be better to go for non-prejudicial language, as well as, I hope, including the balancing language in Amendments 83, 85 and 88?
As far as I know, this is not intended to be prejudicial, but it presupposes a case where there is a tenable argument and it is put to the court that a retained EU law has that effect. Then the court will decide whether it does and what would be the proper development going forward. Taking that intervention on the hoof as it were, I am not sure at first sight that one is convinced that it would be better to change the wording. Let me reflect further.
I am looking at the same clause as the noble Lord, Lord Kerr. He asked about new subsection (5) (c). I shall ask the Minister about new subsection (5ZA)(a), in which the courts are being asked to consider
“the extent to which the retained domestic case law is determined or influenced by retained EU case law from which the court has departed or would depart.”
If we are not encouraging courts to depart, why would we be asking them to consider the extent? That seems to raise a question, given what the Minister has just said.
If I may say so to the noble Baroness, I think this is just a drafting point. The extent may well be nil. There is no particular reason to suppose that the retained EU case law in a particular case is restricting the proper development of domestic law. That was the situation, as it turned out, in the Warner music case, although at least one learned justice in that case very pointedly left open the possibility of further developments in a fast-moving technology.
I was not referring to the proper development of domestic law on this occasion. At the top of page 6, we seem to be asking courts to consider the extent to which EU case law “determined or influenced” in and of itself rather than about the “proper development” which is in new subjection (5)(c). I wonder whether that is, to use the language used by the noble Lord, Lord Kerr, prejudicial or leading the court.
But why are we asking courts to ask themselves that question?
The answer is that the courts will not raise these questions of their own motion. These points will be raised by a party to the proceedings. Then the party to the proceedings will argue that this retained domestic law is influenced by EU case law and is now having—or may have in five or 10 years’ time—a restrictive effect that is holding up the common law. Those are the kinds of circumstances that it envisages, I think.
I think the Minister was about to sit down, but he kindly invited me to respond so I will. I think that is the problem. He must surely understand that we anticipate this leading to an enormous amount of uncertainty—if that alone is something a party in the court is able to point judges towards and say that, because the case law came from the EU, in and of itself that is a reason to ask for a decision to be made in a different way.
Respectfully, as I said a moment ago, I do not accept that this will lead to a great deal of uncertainty. It is binding on the courts of first instance. No one is going to take this to appeal unless there is a real point to be argued. If there is a real point to be argued, it is right that that our courts of appeal and higher courts should consider that point.
Perhaps we have had sufficient exchanges on this topic and I ought to move on as best I can. Finding my place in the notes, I think I have not answered the concerns raised about what we mean by “changes of circumstances” and how we manage that. Again, this is a matter that the common-law courts are very well equipped to deal with and they can decide for themselves whether there has been any relevant change of circumstances or, in particular, whether the change of circumstance is relevant.
I would not have thought that a change of government or a change in the political wind is a relevant change of circumstance. What you need is some circumstance that makes it either difficult to operate, or less than ideal to be bound by, a particular judgment of the European Court of Justice that may have been made many years ago. It may now be completely out of date or may have failed to take account of various factors that the court feels should be taken account of. Very often in a common-law system, when you look at a case and at previous decisions, you see that the particular point had not in fact been decided and you are therefore free to decide it yourself. That is much more difficult to do in a European system, which purports to lay down perfectly general principles.
If I may trespass on your Lordships’ kindness for a moment, it is often quite interesting to look at the summary of a European Court judgment, which in English terms would be referred to as the “headnote” of the case. It extracts principles from the judgment. The equivalent headnote in an English case says: these are the facts, and this is what the decision was on these facts. That encapsulates a difference of approach, thought and philosophy as to how you develop the legal system.
As I said a moment ago, I am not saying that it is better or worse; it is just different. Historically, we in this country belong to a huge family across the world that uses this technique, whether in the United States, Canada, Australia, India—very prominently—or otherwise. The Government are simply saying that we should not forget that we have a great legal tradition and we do not have to, as it were, slavishly follow the latest emanation from those very hard-working, very able, but not necessarily relevant to us, judgments and judges in Luxembourg.
I have listened very carefully, and there is a fundamental flaw in my noble friend’s argument as it relates to Scotland. Scotland has a mixed legal system. I am a non-practising member of the Faculty of Advocates. I chose to go and practise EU law because every reference was either passed down to London or you could practise EU law in Brussels; there were very few opportunities to practise at the Scottish Bar. But my noble friend must accept that the Scottish system—which, I would hazard a guess, has many advantages over the English system—is based on Roman law. It is based on a system of codified law, and what distinguishes it fundamentally from what he has just described about the common-law system is that it is a mixed legal system. I wonder whether he would like to address this in his remarks, given the comments that I made in relation to the amendments that I spoke to—Amendments 81, 82, 84 and 94—and mindful of the fact that I am approaching this from a mixed civil and common-law system.
I thank my noble friend Lady McIntosh for that intervention, and I stand corrected. She is completely right that Scotland is a mixed system, although I venture to suggest much influenced—if I may use that controversial word for a moment—by the common law. As I said a moment ago, Scottish judges have been, frankly, the best common lawyers anyone has ever known. They happen all to be called Reid but that is a coincidence.
Of course, I accept the comment, although I beg to differ as to whether any different conclusion follows. Essentially, the “may”, “must” and other amendments that the noble Baroness has proposed are independent of the exact legal approach one is talking about. It may well be that, in a Scottish situation, there would be a greater willingness not to disturb retained case law than in an English situation. I do not know; maybe these things will come up to the Supreme Court and someone will say “That is what we are going to do”. Maybe the Scottish tradition will prevail; that is perfectly likely. With respect, the Government do not feel that that changes the general thrust of Clause 7.
That was changes of circumstances. The next question is on this word “influence”—whether it has been influenced or determined by European law. I think “influenced” is included simply to give a sufficient degree of flexibility and to avoid deciding what might be quite a difficult point: whether European law was in fact determinative of a particular point or just part of the general context. Very often, it is part of the general context and the influence of the European element on the final outcome.
On that point—I am not sure we picked it up entirely; I may be speaking out of turn—I shall, if I may, at least attempt a reply to the noble Lord, Lord Kerr, on the question of principles of interpretation. I think it is relevant to the influence point. It arises in the context of legislation. Many here will know better than me, but the essential difference, as I understand it, is that traditional common law, including the Scottish approach, is a highly textual interpretation: what the meaning of the words is. The European Court’s general approach is a teleological interpretation of the general idea of where the statute is going. Very often, because of the laconic and sometimes completely deficient nature of European legislation, that court is much more prepared to fill in the gaps in the legislation than an English court would be. It is along those general lines; I am sure we can elaborate further as necessary later in these proceedings. So that is the influence point.
I think I have dealt with adding in the factors of settled understanding, legal certainty and so forth. The Government do not support that approach because it would simply bake in the status quo; that is the Government’s essential position. Legal certainty is inevitably something the courts will consider. They considered it in the Warner Music case because they were dealing with an international treaty and there was a desire not to disturb the law—albeit that the law was a right old muddle, as far as one can see, if I may put it colloquially just for a moment. In that case, it was not actually very seriously argued that we should depart from EU law; it was a perfunctory argument that took place in a few minutes at the end of the day, so it was a bit of a non-event.
I apologise if I am interrupting the Minister before he has finished; I think he is replying to Amendments 85 and 88, although he did not specifically refer to them. He dismisses the need for the factors introduced in those amendments because he says the courts can have regard to them anyway. Why have the Government prescribed several elements themselves if the courts can have regard to them? Our whole argument is that the courts can have regard to factors they want to have regard to. The impetus behind Amendments 85 and 88 was that the Government were being partial and pushing in a certain direction for the three elements they will allow the courts to consider—the argument for adding the extra elements, the consequences of disturbing the settled understanding of the law and the importance of legal certainty, clarity and predictability—and to try to re-establish the balance that the authors of the amendments felt was lacking.
If I may say so, I find the Minister’s reply so far extremely puzzling. He has, correctly, given a paean of praise to our courts and the common law, saying that they have perfected the art of creating this mosaic—
Yes, I am getting to it. I want an explanation. I said the Minister’s reply was “puzzling” but, if I may say so, I want to say “contradictory” and “does not add up”. I want to press the Minister to clarify what he has said. I find it really quite irritating that Ministers keep interrupting us when we are trying to say something. The fact is that the Minister has praised our common-law courts and said they have not been inhibited in the proper development of the law and so on, but now he wants—
My Lords, at the previous stage I reminded the House, I thought courteously, of chapter 4.29 of the Companion, where it is made perfectly clear that lengthy and frequent interventions are not desirable, whether or not the Minister accepts them. This is Committee. The noble Baroness can return with a reasoned response to what the Minister has said, but I think it is to the advantage of the House generally in our debates to hear the Minister’s arguments and then respond in a proper Committee manner. If I may, the noble Baroness’s intervention seemed to me to be getting into the category of “lengthy”.
Before the Leader of the House sits down, perhaps he could just clarify that point. I have always understood that Committee stage in this House is about having a conversation so that the House as a whole can understand the nature of the arguments. With all due respect to the noble Baroness, Lady Ludford, with whom I often disagree, I think she is trying to get some elucidation, and I am sure that the noble Lord, Lord Bellamy, will answer fully in a moment.
I say to the noble Lord that the answer is precisely so; it is a conversation, but that conversation is conducted politely one to another. It is perfectly correct and reasonable for the House to ask a question for elucidation in the course of a Minister’s remarks, but a lengthier intervention criticising the Minister’s argument follows naturally in the Committee conversation afterwards.
If I may be permitted to finish, I have now had three interventions from the Government Front Bench, which of course have lengthened this intervention. I ask the Minister please to explain how his paean of praise to our courts and their ability to develop the common law without inhibition accords with the constraints and straitjackets the Bill is putting on the courts he is praising.
My Lords, the Government’s position is that this is not a straitjacket. The courts are required to look at three things: the fact that the retained EU case law is made by a different court, whether there has been a relevant change of circumstances, and how the proper development of the common law should continue in future.
As to why we have not included other considerations—notably, legal certainty—the Government’s position, which noble Lords may or may not agree with but this is the explanation, is that once you write down the importance of legal certainty, that is potentially a recipe for passively doing nothing and continuing to be a rule taker for 20 years to come. That is not the consequence of withdrawing from the EU. The courts can continue to look at it, but that is the reason why the Government have drafted Clause 7 as it is.
I hope I have dealt with most of the issues raised about Clause 7 one way or another. There is the reference procedure, and noble Lords, and noble and learned Lords, have made the point that higher courts always have the discretion whether to take a case, and they should be able to decline it. I completely understand that point. The Government had thought that the ability of those superior courts—the higher courts or the Supreme Court—to decide whether what they were being asked to do was relevant and whether the point raised was of general public importance was sufficient protection and would enable them to decline to hear the case if that were so. I must say that the circumstances in which a lower court actually gets as far as making a reference and identifying a point of public importance that a superior court feels it should not hear seem to me, if I may say so, somewhat remote, but we can have another look at the drafting if there is a need for further reassurance. I cannot commit to changing it, but I can commit to looking at it and discussing it with the relevant persons.
My Lords, will the Minister please reply to the point I made? The situation may be such, as we know from bitter experience, that you can identify an important point of law in a case but, unless it is dispositive of the whole of it, it will lead to further expense and time. That may apply equally to this point of law as to any other. There is no special feature regarding points of law relating to retained law, as opposed to points of law in any case.
That might raise the question of whether indeed it was relevant. You could say, “That’s not relevant here because it’s not dispositive”, or “It’s only one point among several”. However, I say to the noble and learned Lord that the Government will have another look at this. There is no point in having provisions that are not satisfactory in this regard.
That takes me to the law officer reference and intervention powers. On the essential points made by my noble friend Lady McIntosh about the position of the Lord Advocate, I hope she will bear with me. My understanding of the exact position of the Lord Advocate is probably not as good as hers and that of other noble Lords in the Committee. Essentially, the law officer reference power provides another mechanism for resolving these various points, and it gives the UK law officers and the relevant officers of the devolved Governments a statutory right to be considered and so forth. It does not extend the Lord Advocate’s powers to anything outside the devolved competence of the Scottish Government, any more than it does for the Counsel General for Wales or the Attorney-General for Northern Ireland. The Government’s view on this point is that the other law officers in the devolved Governments should be involved in matters that affect the devolved Governments and not matters that are retained UK law. That is the Government’s position.
The Government see the Lord Advocate’s continuing functions, which I understand to be largely prosecution-based, as specific to the Lord Advocate. We are not giving this reference power to other officers who also have prosecutorial functions in other parts of the United Kingdom, such as the Director of Public Prosecutions or the Director of Public Prosecutions for Northern Ireland.
I am sorry. Does a noble Lord wish to intervene?
That is quite all right.
This is the logic of the approach. It is a cross-UK approach and not a Scotland-specific approach. It does not seem appropriate that the previous functions of the Lord Advocate, so far as they have been retained, should change.
I am sorry. I was saying that this is a structure that gives the UK law officers power in relation to UK competence and the devolved Governments power in relation to their competence. That is the structure of it all.
Amendment 101, on the question of incompatibility orders, is described as a probing amendment. Again, this has precedence in other parts of the statute book. The Judicial Review and Courts Act 2022 has a similar power. If there is a point of incompatibility, the courts are given a power to manage that; it would probably mean deferring making an order for six months until the Government could fix it, as did the Court of Appeal in the Open Rights Group v The Secretary of State for the Home Department and the Secretary of State for Digital, Culture, Media and Sport: we have found a problem, and we are going to give you time to come up with solution, whether it is legislative or otherwise. In that particular case, the power was said by the Court of Appeal to derive from EU powers, but this is giving the court power under domestic legislation. I hope it is a sensible process for making the compatibility mechanisms work properly if incompatibility is found, which is likely to be a fairly rare event. I hope I have covered most points, if not all.
I am very grateful to the Minister for the skill with which he is trying to explain to a layman like me abstruse points of law. Could he give us a worked example, please? I was struck by what the noble and learned Lord, Lord Etherton, said about the potential cost to the country of a loss of clarity. Take his example of the copyright law of the United Kingdom, which, he said, was virtually exclusively based on EU law. What changes of circumstances do the Government envisage that the courts should be considering when they consider cases that are tried under the present British copyright law? The only change of circumstances I can think of is if the Government were to pass new legislation on copyright. I do not think that is the plan, but if they do not, what are the courts supposed to do? What change of circumstances would they have to consider?
My Lords, fortunately, I think I was asked by the noble Lord, Lord Kerr, for only one example, and so I will just give one because it is getting quite late. The example is changes in technology, which are moving very quickly. The Warner case, which has now been mentioned several times, was a case in which a radio station in the US put some music in a hyperlink on its website. Consumers in the UK could click on the link on that website, and the question was whether the UK copyright holders could get a royalty on that even though the UK user was accessing it in the United States—it does not matter if it is the United States, Taiwan or anywhere else. In that kind of area, the technology is moving very quickly. The existing EU decisions are not entirely consistent, and it can be easily envisaged that in some future situation, where some technology that we do not yet understand or know of has come into being, a UK court might take a different view and distinguish previous EU jurisprudence. That sort of situation is more than likely to happen at some stage.
My Lords, it has been a lengthy and thorough debate, and I fear it has not gone quite as smoothly as my noble and learned friend the Minister would have wished. I am pleased he has conceded that Scots rule approaches this from a different angle. The noble and learned Lord, Lord Hope, has not been able to be present today, and I do not think my noble and learned friend has entirely answered the concerns of either the Royal Society of Scotland or the noble and learned Lord. In particular, my noble and learned friend has not addressed the question of why there is no corresponding restraint on the powers of any other UK law officer—for example, the England or Wales law officer—but only on the Scotland law officer. I would like to understand, perhaps at a meeting before Report, why that is the case. It is quite serious.
My noble and learned friend spoke at length about why retained EU law is historic now, but we are in a situation where court cases may arise. For example, the chemical industry here is going to be covered by the fledgling UK REACH programme, but the industry would also hope to export to the EU and so will have to meet the terms of the EU REACH programme. Does my noble and learned friend not accept that there will be cases that relate to this?
I fear that Clause 7 is an exam question seeking to show that, on appeal, there will be no reliance on retained EU law going forward. I think that was the wrong question to put, as has been adequately set out to such an extent that a distinguished former President of the Family Division, the noble and learned Baroness, Lady Butler-Sloss, said it is offensive to treat judges in this way, as did my noble friend Lord Hailsham, in slightly less graphic language.
I am grateful to the noble and learned Lord, Lord Etherton, for speaking to the amendments in the name of the noble and learned Lord, Lord Hope. I believe that work is not complete on this chapter but, with the promise of a meeting before Report, I beg leave to withdraw my amendment.
Amendment 81 withdrawn.
Amendments 82 to 99A not moved.
Clause 7 agreed.
Clause 8: Compatibility
Amendment 100 not moved.
Clause 8 agreed.
Clause 9: Incompatibility orders
Amendment 101 not moved.
Clause 9 agreed.
Clause 10: Scope of powers
Debate on whether Clause 10 should stand part of the Bill.
Member’s explanatory statement
This is based on a recommendation from the Delegated Powers and Regulatory Reform Committee’s report on the Bill.
My Lords, I will move the Motion, in the name of my noble friend Lord Fox, that Clause 10 do not stand part of the Bill. I am relying on the persuasive report of the Delegated Powers and Regulatory Reform Committee, which points out that the powers in Clause 10 to amend retained direct EU legislation affect over 50% of retained EU law, because 50% is retained direct EU legislation. At present, much of this can be amended only by primary legislation or Henry VIII powers. So Clause 10 in fact downgrades the status of retained direct EU legislation.
The DPRRC quotes the delegated powers memorandum from the Government, which says that they are doing this so that such law
“can be amended by ordinary powers to amend secondary legislation” to “save parliamentary time”. As the committee remarks, perhaps somewhat caustically,
“the argument based on saving parliamentary time is unpersuasive. It should be for Parliament to say what is the best use of its time.”
So it seems a little forward of the Government to make that assertion on behalf of Parliament.
However, as the committee points out, retained direct EU legislation
“has a special status because much of it is of considerable significance in policy terms”.
Therefore, it is necessary for Parliament to keep control of which elements of the law to keep, amend or repeal. The committee says:
“Clause 10 … is an unacceptable interference with the position in the European Union (Withdrawal) Act 2018 that substantial policy changes should be for Parliament to decide in primary legislation rather than for Ministers to decide in secondary legislation.”
We have made that point repeatedly during the proceedings on the Bill. The Government broke a pledge. When the EU withdrawal Act went through, we were repeatedly assured that it would be for Parliament to make decisions about what retained EU law to amend and how to do so. But then the Bill comes along, and they do not even admit that this is a complete switch of approach and a grabbing back of powers for the Executive—but that is what it is.
Amendment 128, in my name and that of my noble friend Lord Fox, inserts a clause that will be pretty familiar: it is on the model of amendments we have tabled to previous clauses, on the requirement for consultation and a report to the relevant parliamentary House—either this Parliament, the Scottish Parliament, the Senedd or the Northern Ireland Assembly—with an analysis of the advantages and disadvantages of the proposed regulations. This would include the effect on the different stakeholders, any supposed or expected benefits, representations received, and so on. It would also cover the compatibility of the revocation, modification or replacement with obligations in the trade and co-operation agreement and the Protocol on Ireland/Northern Ireland. Again, this is on the pattern of previous amendments.
We are trying to do for the Government that which they will not do for themselves: to fulfil their promises—first, those in the EU withdrawal Act 2018, and, secondly, those associated with the Brexit referendum—that Parliament would be in the driving seat. This is the great con of our times: Parliament is being written out of the picture. It is so obvious, and it is amazing that more people have not cottoned on to what is happening; namely, that this is a huge power-grab by the Government, and they really should not be allowed to get away with it.
My Lords, I will speak to Amendments 104, 115, 116, 122, 124 and 125 in my name, and in support of Amendment 141 in the name of the noble and learned Lord, Lord Hope. Amendment 104 again substitutes the end of
I would agree with my noble friend if we knew which bits of REUL were being repealed, which were being revoked and which were being reformed—but, as we speak, we do not. As we know, many devolved measures are simply not on the dashboard at the moment, which makes that time even more unacceptable.
Amendment 115 requires a “relevant national authority” or “Minister of the Crown” to consult those who may be affected by regulations under Clause 15(2) before making them. All relevant national authorities will be required to publish the results of this consultation. The idea is to oblige the Minister of the Crown to consult the devolved Administrations before making regulations that concern them.
Amendment 116 makes similar provisions under Clause 15(3), so the same comments apply there. Amendment 122 also extends the statutory deadline from
I do not know if the noble Baroness, Lady Meacher, will speak to Amendment 141 in the name of the noble and learned Lord, Lord Hope, but I conclude by saying that I support his amendment, to which the noble Baroness, Lady Humphreys, has added her name. I welcome the fact that the
“amendment modifies the powers conferred on Ministers of the Crown when making regulations in devolved areas under this Schedule so that the power may only be exercised with the consent of the Scottish or Welsh Ministers.”
I hope that my noble friend the Minister, when summing up, will look favourably on those amendments in this group.
My Lords, I will follow the words of the noble Baroness, Lady Ludford. I have added my name to the question on whether Clause 10 should stand part of the Bill. As noble Lords know, my view is that the Government really have a responsibility to withdraw the entire Bill; they should take it away and have civil servants work up all the policy developments that are assumed in it. As it stands, decisions on all these policy areas will simply be left to Ministers to make through delegated legislation; that is not acceptable at all. I was strongly supported by my noble friends Lord Wilson and Lord Lisvane and many others when I made this point in an earlier debate.
Clause 10 transfers powers wholesale from the EU to Ministers, who will then decide which regulations to propose. It includes extensive amendments to Part 1 of Schedule 8 to the European Union (Withdrawal) Act 2018. In omitting sub-paragraphs (1) to (5) of paragraph 4, the Government are further reducing the power of the UK Parliament with respect to retained EU legislation, and, as the noble Baroness, Lady Ludford, said, with particular respect to retained direct EU law. The Government justify that on the basis that retained direct EU law did not have as much parliamentary scrutiny as other parts of retained EU law, but that was because the UK was bound to comply with retained direct EU law under the treaty of Rome. We are now not in the EU—we are in an entirely different situation—and the UK Parliament needs to take over responsibility for this area of law, which represents at least 50% of retained EU law.
As noble Lords know, we parliamentarians cannot amend secondary legislation. It would be extremely difficult in this context for Parliament to reject the secondary legislation involved, and therefore Parliament will have no option, in my view, but to accept the delegated powers we are talking about here. Surely this is entirely unacceptable. Ministers’ regulations across a vast range of policies will affect the entire UK population very considerably.
Clause 10 radically changes the European Union (Withdrawal) Act 2018, affecting a huge transfer of powers from Parliament to Ministers. This is in conflict with stated government policy and the Government’s Explanatory Memorandum to the Bill. Clause 10 should not stand part of the Bill.
My Lords, it is an honour to follow the noble Baroness, Lady Meacher; I agree with everything she said. I also very much agree with the previous speakers, including my noble friend Lady Ludford.
I will make a point in response to the points made by the noble Lord, Lord Hamilton, when he questioned the noble Baroness, Lady McIntosh, on whether her amendments would delay the process and whether that would be a problem. The fundamental problem we have is set out very clearly by the Delegated Powers and Regulatory Reform Committee in paragraph 35 of its 25th report, which quotes from the RDEUL memorandum:
“Overall, the change in status will make it possible to amend or repeal a greater amount of RDEUL using secondary legislation, which will enhance the ability for amending RDEUL more quickly without the need for primary legislation. This is a more proportionate status for RDEUL, as when made it was not subject to the same degree of UK Parliamentary scrutiny as an Act of Parliament or even domestic secondary legislation.”
However, the committee goes on to say that
“RDEUL has a special status because much of it is of considerable significance in policy terms.”
Once again, we have spent most of the last three Committee days discussing issues relating to policy and asking for clarification on when that will be nailed down and understood and when Parliament can look at it before final decisions about the Bill are made.
I return to the question I asked on the first day of Committee: at what point will the dashboard be frozen? After it is frozen, how long will it be before it comes into law? Will it be
Before the noble Baroness finishes her remarks, I would be grateful if she could answer my question: if you delay the implementation of considering this legislation, do you not create greater uncertainty?
It is fairly straightforward. Those of us with extreme concerns about the Bill do not want a Bill passed where time after time people, especially the wider public, realise that regulations have been sunsetted without their understanding of the consequences—and without our own Parliament’s understanding of the consequences. Frankly, that is the one delay that really should be put in place, because we do not know what is going to happen.
My Lords, I have tried to follow and to listen to as much of the discussions on the Bill as possible, and I confess that some of the legal arguments happening earlier were beyond me. I will raise a couple of points, the first of which is in relation to the delay. I said at Second Reading, and I maintain the point now, that the Bill has been a long time coming. The public perceive the debate about how we deal with taking control of our own laws, as the UK having left the EU, not in the sense that it has been rushed through, but rather that it has been sluggish and blocked, and that any attempts to try to force through that break from the European Union have been obstructed by people who did not approve of the decision taken in 2016.
I am very sensitive to the perfectly reasonable criticisms made throughout the arguments I have heard. The Minister must give some reassurance that there are no unintended consequences of the Bill and that important laws are not lost that the Government do not intend to lose—those they will lose by accident, as it has been described. That is of some concern. Reassurances that they are in control are not that reassuring when we look at the parlous state of the way everything else is falling apart at the moment. So I have reservations myself; I wanted to clarify that. But saying that we should delay things until 2028 will be seen, understandably, as quite simply putting off the task, and that does not work at all.
I also want to address the point that the noble Baroness, Lady Ludford, made when she rightly noted that when we were in the European Union much of the law that was not looked over by Parliament was indeed put forward by UK Ministers. It is true that many politicians in the UK felt much happier dealing with getting laws through Brussels and Strasbourg than being answerable to the UK public—to the electorate in this country. They quite liked taking their laws over there and coming back to the UK and saying, “What can we do about it? It is just being imposed on us by the EU.” I have always been critical of that.
There is no doubt that there was less fuss made in both Houses about the fact that laws were not scrutinised by Parliament at that time. I want there to be more scrutiny by Parliament now. I think the reason why people outside Parliament, Westminster and Whitehall are suspicious of opposition to this Bill, which you cannot blame them for, is that over the years they have not seen the same enthusiasm for scrutinising law that was imposed on the UK. I agree it was often under the auspices of UK Ministers having agreed it over in Brussels. There is a certain amount of speaking with forked tongue going on here. There is no doubt about it.
Whereas I want to hold the Government to account for the problems with the Bill, my nervousness is that it feels mired in politics. So I cannot get away from the feeling that any delays or tactics that say, “Can we not just wait a bit longer?”, let the Government off the hook. The Government should have got on with this a lot longer ago rather than having to rush it through now. But I think any delays are likely to cause real cynicism outside this place. But the Government do need to reassure me—
I just wanted to say to the noble Baroness—and I probably will not go into lawmaking in the EU, as the noble Baroness was an MEP herself—that to say that lawmaking in Brussels is not democratic is, to my mind, ridiculous.
I particularly want to address her assertion that objections to this Bill are mired in politics. Had she been here, as I have, through the entire four days—now nearly four and a half—on this Bill, she would know that across the House the objections have been because it is an Executive power grab. Almost no reference has been made to the Brexit referendum or the policy of Brexit. It is about the way that the Bill is constructed and the power that the Government are concentrating in themselves. It is a question of the rights of Parliament and the type of governance we are objecting to. It is not political in that sense. The objections to this Bill are constitutional.
I appreciate that I have not been in the Chamber for all of that time, although I have been here a fair few hours, one way and another, and I have read everything that was said in previous discussions. I do not feel as though I am just wandering in to make this point.
I have also talked to people outside this House about their understanding of this discussion and I am trying to draw attention to that—
I am very grateful to the noble Baroness, Lady Meacher, for giving way for my question to the noble Baroness, Lady Fox. If the noble Baroness, Lady Fox, is not concerned about Clause 10, does that mean that she disagrees with the very clear comments from the Delegated Powers Committee? It sees it as a power grab and thinks it is a completely inappropriate use of secondary legislation.
I am concerned about aspects of this Bill from a delegated powers point of view, as I have been on a range of Bills that we have had in this House. Maybe it is because, as in the previous intervention, it was made clear to me that there is a disagreement about what democracy is. I do not think that while we were in the European Union that was a democratic, accountable form of lawmaking. I did not make that point. That point has just been made back to me. I am saying that although I understand that the arguments put forward say that they are not replaying a lot of discussions from the past, I think that argument has been implicit in a lot of the discussions. That was certainly what I heard at Second Reading and I have picked it up.
I am also making the point that if there was a genuine enthusiasm from this House about how we can take the opportunity of having left the European Union to now study and look at all of those laws, there might be less cynicism outside this House. That was my point.
I also was making a different point about timing. I have not heard from this House, either while I have been in it or before I got in it and was watching it from the outside, an enthusiasm to rush things through, as soon as we voted in 2016, to say, “Let’s take all the laws. Let’s look at the EU retained laws. Let’s now make a decision about what we do with these laws.” People did not want to do that because they did not accept the decision. Now, people are saying that it is too rushed and that there is a danger that this will come over—as it is doing—as an attempt at blocking taking back control.
As to the delegated powers and the power grab, I am afraid that that is something I have broadly been worried about from this Government, not just with this Bill. I have spoken on it many a time.
My Lords, I will speak to Amendments 129 and 131 in this group in my name and those of the noble Lord, Lord Rooker, and my noble friend Lady Boycott, who, I am sorry to say, are not in their places. These two amendments are about transparency, accountability, and scrutiny, so, in a way, they follow neatly from some of the points the noble Baroness, Lady Fox, was making a few moments ago.
Transparency, accountability and scrutiny are surely not contentious concepts so I hope that the Government would agree and therefore sign up to these amendments. Amendment 129, very simply, would require the Government to seek advice from the Food Standards Agency and Food Standards Scotland as to whether any proposed changes to the regulations will reduce food safety or other consumer protections in relation to food.
Noble Lords will recall that the Food Standards Agency is the non-ministerial department in England, Wales and Northern Ireland with responsibility for food safety and consumer protection in relation to food. It would surely be bizarre beyond belief not to consult the relevant department and its Scottish counterpart before making any changes to retained EU law. The importance of this underlined by referring back to a previous debate in Committee. I quote from Hansard. I said on
“I will quote what Professor Susan Jebb, the chair of the Food Standards Agency, said on 2 November last year:
I then said:
“According to the government department in charge of food safety and standards, the sunset clause is putting public health at risk. There is no point in the Minister trying to deny it, because that is what a government department is saying.”—[Official Report, 23/2/23; col. 1832.]
I will now quote the Minister’s reply because she did indeed deny it by saying:
“Let me assure noble Lords that any decision on REUL reform will not come at the expense of our high standards.”
She added that
“our commitment to not reducing consumer protection remains in place.”—[
Here you have it in black and white. The head of the relevant government department, Professor Susan Jebb, says that we cannot sunset EU-derived laws without sacrificing consumer safety and other protections. The Minister told this House on
Lest this be thought to be some sort of political point, I want to say that when I was chairman of the Food Standards Agency, with a Government of a different political complexion, Ministers were keen to rush to reassure the public on issues to do with food safety, whether it was BSE or foot and mouth disease, and I really had to stand up against pressure from Ministers and say, “No, we can’t provide reassurance on safety”. If this amendment is accepted, it will ensure that the proper expertise, lines of accountability and scrutiny are in place to review any proposed changes in food law.
I turn now to Amendment 131, which is about transparency. As the noble Lord, Lord Rooker, reminded noble Lords earlier in Committee, the Food Standards Agency and Food Standards Scotland published their first annual report on food safety and standards across the UK, entitled Our Food 2021, in June. Here is a quotation from the introduction:
“At a time when the UK is taking on new responsibilities for food following our departure from the European Union … consumers need strong watchdogs looking out for whether standards are being protected. This report—the first in a series to be published annually—will help us do so by providing an objective, data-driven assessment of the safety and standards of food over time.
Why us? Because the Food Standards Agency … and Food Standards Scotland … are together responsible for food standards across the whole of the UK—this is an important, long-term collaboration between our two organisations that should provide greater transparency and accountability for food quality across the four nations. This, in turn, will help us work with food businesses, local authorities and other partners to address any emerging threats or vulnerabilities.”
Amendment 131 simply seeks to put this annual report, or a slightly modified version of it, on a statutory basis. It will tell the public, businesses, the Government and others whether, as result of changes to our laws, food standards and safety are being compromised. How on earth could one object to this transparency?
As the noble Lord, Lord Rooker, reminded us the other day in Committee, transparency is one of the keys to trust. It has taken years of work by the Food Standards Agency to rebuild public trust in the UK food system after the disasters of the 1990s, including BSE and salmonella in eggs. Indeed, that is why all parties supported the creation of the Food Standards Agency, so it could be a department that puts consumers’ interests first and rebuilds trust in our food system. Why would the Government wish to squander those gains now? I therefore look forward to the Minister warmly welcoming both my amendments, and to assuring us that the FSA and FSS will have the necessary resources to fulfil the duties that are implied by them. These are very modest changes to the Bill, aimed at improving it, and I hope that, if the Minister does not welcome them, he will at least agree to meet me and others to discuss the implications of not accepting them.
That is an extremely good question and I thank the noble Lord for asking it. That is precisely what I would say too. Therefore, if the Government do not want to risk undermining public safety or public confidence in our food businesses, and therefore our food exports, they should accept these amendments. After all, the chairman of the FSA could not have said it more clearly, and I shall just repeat it once more:
“we are clear that we cannot simply sunset the laws on food safety and authenticity without a decline in UK food standards and a significant risk to public health.”
It is not me who is saying this; it is the head of the government department with this responsibility.
My Lords, I will not detain the Committee for long. Obviously, my noble friend and the Front Bench team oppose Clause 10 standing part of the Bill, for very good reasons, as outlined by the Delegated Powers Committee. I shall just address the noble Lord, Lord Hamilton, on this point: no one disputes that what the country and the Government wanted was a transition. They voted for a transition, returning to Parliament the powers to make laws. That was actually what was contained in the 2018 withdrawal Act, and we now have a policy change: it will no longer be the responsibility of Parliament to revoke, retain or advise; it will be a government Minister.
We have heard extracts from the committee’s report. These pieces of EU legislation are normally about very significant policy issues; it is not as if they are irrelevant regulations that we no longer need and can therefore be put in the bin. They tend to be on very important policy issues. Therefore, as the committee says, it is not about where they originate, it is what they are about. Parliament should therefore have the say about whether they are revoked, retained or revised.
Of course, saving parliamentary time, which is what the memorandum says, means that we are going to have these direct laws immediately put into the secondary legislation category so that we end up not being able to consider any amendments or revisions—we either accept or reject. What does that mean? If there is a desperate need to improve things, we cannot do that; we have to reject, and we end up with nothing. I have repeatedly said that this is not how we should be making laws. We should be reasserting the policy outlined in the 2018 Act.
Nobody is disputing the need to examine these things. I am not even disputing the concern of the noble Lord, Lord Hamilton, about the timescale. We should move as speedily as we can, but it should not be on the basis of areas where a sunset clause will cause things to fall off, or of simply saying, “We need to speed up Parliament, and therefore to consider whether to accept or reject a Minister’s decision on important policy areas”. That is not what this Parliament is about. I hope the Minister will consider the views not only of the Committee but of the Delegated Powers Committee: is Clause 10 seriously necessary? It undermines exactly what I suspect people who voted for Brexit really wanted: for this Parliament to decide the UK’s laws.
My Lords, we have ensured that the Bill contains robust scrutiny mechanisms that will enable the appropriate scrutiny of any amendments or repeals of retained EU law made by the powers included in the Bill. The debate touched on two different things: we need to differentiate between the effects of Clause 10 and the application of pre-existing delegated powers contained in other Acts of Parliament, and the delegated powers included in the Bill.
Because of the points that have been made, I want just to touch on the scrutiny mechanisms. These include a sifting procedure that will apply to regulations proposed to be made under the power to restate and the powers to revoke or replace. This will afford additional scrutiny to the use of the power while retaining the flexibility of using the negative procedure where there are good reasons for doing so. We recognise the significant role Parliament has played in scrutinising instruments subject to sifting procedures previously and are committed to ensuring the appropriate scrutiny under the delegated powers in the Bill. Indeed, the Leader of the House of Commons has written to the chair of the European Statutory Instruments Committee proposing that the committee take on the role of sifting committee in the House of Commons to determine where the negative procedure may apply.
I wanted to give that background because there are these two different aspects to the debate, but I turn first to the clause stand part motion introduced by the noble Baroness, Lady Ludford, and supported by the noble Baroness, Lady Meacher. Clause 10 must stand part of the Bill because it provides the answers to two fundamental questions. First, is it right that technical regulations should be treated as equivalent to an Act of Parliament? Secondly, are this Government happy with the risk of these regulations sitting stagnant on the statute book? The answer to both, as we have argued all along, is no. Clause 10 modifies powers in other statutes to allow them to be used to amend or retain direct EU legislation and directly effective rights. Over 50% of retained EU law currently identified on the REUL dashboard—I agree with the noble Baroness on that figure—is retained direct EU legislation. It is comprised mainly of EU regulations in which the UK Parliament had no real say. This legislation often does not reflect the UK’s priorities or objectives—to drive growth, for example. We are currently forced to treat some retained direct EU legislation as equivalent to an Act of Parliament when amending it. This is not appropriate; it does not fit with this Government’s vision of REUL reform following the Brexit process, to which the noble Baroness, Lady Fox, referred.
I understand the concerns of the Delegated Powers and Regulatory Reform Committee, but we do need to think of the opportunity that Brexit affords, while maintaining necessary protections. In doing so, we must ensure that parliamentary time is used appropriately. Furthermore, relying purely on primary legislation to amend these technical regulations to meet the UK’s needs would take decades. It is of critical importance that we ensure that these mostly technical regulations do not remain static and can be updated, amended and reformed in response to events and new knowledge, using appropriate delegated powers. Without the measures in Clause 10, thousands of regulations will become stagnant and will be unable to stay up to date, react to new information or implement new international agreements without requiring an Act of Parliament.
I will now move on to a set of amendments relating to the delegated powers, starting with amendments—
Before the Minister leaves the question of allowing Clause 10 to stand part, I am surprised at her disagreement with the Delegated Powers and Regulatory Reform Committee—a dangerously radical body containing wild revolutionaries such as the noble Lords, Lord Janvrin and Lord Goodlad, and the noble Earl, Lord Lindsay. Their view was clearly set out in their report: that Clause 10
“effects a significant transfer of power to Ministers”, contrary to what was set out in the European Union (Withdrawal) Act 2018. The Act said it would be for Parliament to decide changes in primary legislation, rather than for Ministers to do so in secondary legislation.
I understand the argument the Minister is making, but it is not one likely to find much support across the House. We think we have a role in deciding what should be on the statute book; it is not simply for the Executive. I can see the point made by the noble Lord, Lord Hamilton—yet another dangerous radical—that it will take time so there will be, in a sense, continuing uncertainty. This is why I support an extension of the sunset deadlines—although that is not a sufficient cure, I think it is a necessary one for the Bill. But the noble Lord has to recognise that there is huge uncertainty now for economic operators across the country: they do not know which laws are to be amended, which are to be retained and which are to be extinguished. Once we know, perhaps it would be sensible to discuss how long it will take to make the necessary changes.
I thank the noble Lords for their interventions. I did say that I understood the concerns of the Committee. I was trying to explain that, in this particular case, we need to go forward with the arrangements we have because of the situation the EU law of 2018 has left us in and the need to tidy up the statute book, which, otherwise, would take decades to do.
Amendments 115 and 116 in the name of my noble friend Lady McIntosh of Pickering would insert a requirement to consult any interested persons or relevant devolved Governments before any secondary retained EU law could be revoked or replaced. Amendment 115 would require that no regulations may be made under Clause 15(2) unless Ministers comply with a set of conditions, including a requirement to consult any interested persons in relevant devolved Governments before any REUL can be revoked or replaced. Amendment 116 would insert the same consultation requirements regarding regulations made under Clause 15(3). These amendments would hinder the efficient removal of outdated and unnecessary burdens and regulations and their replacement with regulations that are more fit for purpose.
Furthermore, we have sought, as I have explained, to ensure that the Bill contains robust scrutiny mechanisms, including for the powers to revoke or replace. In particular, the sifting procedure will apply to those regulations proposed to be made under the negative procedure. The sifting procedure largely corresponds with the procedure under the EUWA and the European Union (Future Relationship) Act 2020. In both cases, sifting has been effectively used to ensure proportionate parliamentary scrutiny of legislation regarding EU exit. We are scheduled to debate the sifting procedure in more detail on Wednesday, and obviously I look forward to that debate. In addition, it is our expectation that the departments concerned will follow standard procedures regarding consultation and engagement with the devolved Governments during policy development, so I do not consider adding a requirement to consult on the face of the Bill to be appropriate or necessary.
Amendment 128, tabled by the noble Baroness, Lady Ludford, would create a new clause introducing additional restrictions on the use of powers under Clauses 15 and 16. Among the proposed extensive conditions is a requirement that Ministers provide a report outlining an assessment of the potential impact of proposed new regulations. This would include the difference between current and proposed new regulations for protections for consumers, workers, businesses, the environment, animal welfare, any changes to the regulatory burden, and whether the UK’s international commitments to the trade and co-operation agreement and the Northern Ireland protocol continue to be met. Such conditions are unnecessary. The Bill has been drafted to ensure that legislation made under these powers is subject to scrutiny procedures that are proportionate to the scope of the powers. It is our expectation that departments will follow the standard procedures for consultation and impact assessment where it is undertaken. Adding these conditions would significantly delay the process of REUL reform, impact departments’ delivery plans and could prevent departments maximising the use of the powers in Clauses 15 and 16.
Before coming to the sunsets, I turn to Amendment 129, tabled by the noble Lord, Lord Krebs, which seeks to add a clause to the Bill introducing additional restrictions for food standards legislation. It is only right to have powers in the Bill which will help put the UK statute book on a sustainable footing. The powers will facilitate the much-needed review and reform of outdated retained EU law that not is fit for the UK, and they will ensure that we can capitalise on the benefits of Brexit. As I have said, the powers to amend are not intended to undermine the UK’s already high food standards. I say again that this Government are committed to promoting robust food standards nationally and internationally, so that we can continue to protect consumer interests, facilitate trade and ensure that consumers can have confidence in the food they buy. I also value the work of the food standards agencies, for all the reasons the noble Lord, Lord Krebs, has outlined, but that is not a reason to amend this general Bill.
To respond to the noble Lord, Lord Krebs, the Hansard that he referred to reflects the position that retained EU law that needs to be kept will be preserved. The FSA is saying publicly that retained EU law on food standards should be preserved. It is for the relevant department—the Department of Health—and the devolved nations to decide whether retained EU law in their area should be preserved. Therefore, I humbly suggest that the two statements are not in conflict.
Amendment 131, also in the name of the noble Lord, Lord Krebs, would insert a new clause amending the Food Standards Act—an important Act—and introduce a requirement to include an assessment of the impact of the Bill’s implementation when the Foods Standards Agency produces its annual report. Again, this Bill is an enabling Bill. It is simply not appropriate to require that additional criteria assessing the potential impact of the measures within this Bill should be included in a report relating to food standards. Therefore, I do not consider that it is appropriate or necessary to include within the food standards annual report this proposed assessment of the potential impact that the measures within the Bill would have on food standards, given the scrutiny that has taken place and the nature of the Bill.
To wind back a few sentences, the Minister quite rightly said that the Department of Health would be responsible ultimately for changes in the law that affect food safety and standards. However, my amendment was not questioning that issue; it was questioning where the Department of Health is going to get its expert advice from. I did not hear the Minister say that the Department of Health would not propose any changes unless the Food Standards Agency and Food Standards Scotland had agreed that they would not compromise consumer protections in relation to food, whether it is to do with safety information or health. Could she therefore confirm whether that is the Government’s intention?
The noble Baroness should not therefore have a problem in saying that they will consult it. Can we not have a commitment from the Government that they will do so? That is all.
As I said, I am sure that the Health Ministers will consult the Food Standards Agency. The food standards agencies have been set up for this purpose. If you are making changes to legislation, of course there will be consultation. I am not the Health Minister, so I cannot make a declaration of that kind, but I have already said that I will pass on to the Health Minister the discussions we are having on food safety.
I have given my answer. I have been very clear about the importance we attach to food safety from both a government point of view and my own historic point of view, which I hope adds some credibility. I do not think I have a lot further to say, apart from the fact that officials are working with the Food Standards Agency day and night on these areas.
Amendment 132, tabled by the noble Baroness, Lady Chapman of Darlington, proposes that a Minister of the Crown should publish a report 30 days before the powers can be exercised. The report would have to include a list of criteria which relevant national authorities would need to take into account when exercising the powers under Clauses 12 to 17 of the Bill. The delegated powers within the Bill will enable Ministers to make active decisions regarding their respective retained EU law. It is only right to have such powers; they will help to put the UK statute book on a sustainable footing within a reasonable timeframe and facilitate the much-needed review and reform of retained EU law to ensure that we can capitalise on the benefits of UK autonomy. Furthermore, the Bill has been drafted to ensure that legislation made under the delegated powers is subject to scrutiny procedures proportionate to the scope of the powers. I therefore do not consider that publishing a report setting out criteria which Ministers must take into account when using the powers within the Bill is necessary given the scrutiny already provided for.
I turn now to Amendment 141 in the name of the noble and learned Lord, Lord Hope of Craighead; I am sorry he is not here today. The amendment would impose a requirement to seek consent from a Scottish or Welsh Minister where a Minister of the Crown intends to exercise a power in the Bill separately on legislation which is in an area of Scottish or Welsh devolved competence. First, I assure your Lordships that the Government are committed to respecting the devolution settlements and the Sewel convention. Indeed, none of the provisions within the Bill, including the powers, affects the devolution settlements, nor is the Bill intended to restrict the competence of either the devolved legislatures or the devolved Governments.
I recognise that the extension power is not conferred on the devolved Governments. However, we are keen to ensure that the provisions within the Bill, including the powers, work for all parts of the UK. That is why the majority of the powers will be conferred concurrently on the devolved Governments: to enable them to make active decisions regarding their retained EU law. As such, introducing a requirement for a Minister of the Crown to seek legislative consent when using the powers on legislation within areas of devolved legislative competence is not necessary.
We keep being told that there is not going to be consultation or legislative consent, and that the Food Standards Agency would of course be mindful of what the Government have to say. We are being asked to take all these things on trust, but it is not as though the Government have an impeccable record on these things. Can the noble Baroness not appreciate that what the Committee is trying to get at is to understand how these determinations will come about? We are looking for some sort of signal from the Government that there will be openness and a willingness to involve, and an attempt to do more than what is absolutely strictly necessary within the letter of the Bill that she is referring to. Were she to endeavour to give us that reassurance or explain how that would be done, she might find a little—not a lot—more sympathy for the position she is taking.
I understand. I am very grateful to the noble Baroness for trying to help to move things forward; we are certainly keen to do that. Clearly, this enabling Bill is going through Parliament ahead of the some of the work that has been going on around the dashboard and the individual governmental plans, which is perhaps a pity. I think my noble friend the Minister said that he would try to make more information available as that became possible. Indeed, we have given an extra couple of days for debates in Committee. Progress is being made all the time in departments on their plans. We have these two processes—
As the noble Baroness, Lady Chapman, said, the Minister has turned down every single amendment in this group, whether it is for more consultation or for the Food Standards Agency to have a proper say. Every time, she has simply said, “That would take decades”. I am not sure whether an impact assessment has been done to work out what lies behind that phrase; I suspect it is just a throwaway phrase which is meant to cast dust in our eyes. However, it is not terribly convincing, because not a single amendment on the Marshalled List suggests putting the cut-off date beyond 2028, as the amendments in the name of the noble Baroness, Lady McIntosh, suggest. Nobody is suggesting a period of decades. What those of us who support these amendments are suggesting is that the Government should follow the normal procedure, which we have always had in this country before, of consultation and legislation. Could we please not dismiss everything by saying that it would take decades?
I think I said “decades” once. This is of course a bit different from the normal laws that we debate and put through this Parliament, because it is dealing with retained EU law, and we think that there is a need for special arrangements. Equally, there is also a need for your Lordships to understand what our plans are. This is Committee; it is quite conventional at this stage to explain the problems with amendments, which I have obviously been doing.
Picking up on what has just been said, perhaps I should move on to the final issue in this group, which is timing. Amendment 104, in the name of my noble friend Lady McIntosh of Pickering, relates to Clause 12 and seeks to change the date on which the power to restate under Clause 12 is capable of acting on retained EU law from the sunset date—the end of 2023—extending it to 2028. The existing power to restate under Clause 13, which is exercisable up to 2026, provides an adequate opportunity for the reform of retained EU law and assimilated law while providing a deadline to ensure that retained EU law does not languish on our statute book indefinitely.
I turn to Amendment 108A in the name of my noble friend Lady Lawlor. Although she did not speak to it on this occasion, I am glad that one of her early interventions as a Member of this House has been on this important Bill. Her amendment seeks to bring forward the date on which the power to restate assimilated law expires to the end of 2024. This power already puts a protection in place after the sunset by allowing departments to reproduce the effects of retained case law and EU-derived principles of interpretation in relation to specific provisions of restated assimilated law, which sunset at the end of 2023 up to
Although I understand where my noble friend is coming from, I believe that it is necessary to make the power to restate assimilated law available for a sufficient window of time following the sunset date to ensure that the Government can mitigate any unintended consequences associated with the sunset in 2023. While we expect the power to be used only in exceptional cases, it would be irresponsible for the Government not to have a protection in place. Bringing forward the expiration date of the power to restate assimilated law to the end of 2024 would provide a limited time window for departments to use this power and could result in provisions not being restated that are necessary to maintain the desired policy effect.
Amendments 122 and 122A are also on timing. Amendment 122 in the name of my noble friend Lady McIntosh of Pickering would change the date on which the powers to revoke or replace are capable of acting on REUL and post-sunset secondary assimilated law, extending it to 2028. Exercising the powers to revoke or replace will allow the Government to seize our new regulatory autonomy and ensure that REUL can be tailored to meet the UK’s needs in a timely manner. We need to complete that important process.
The powers to revoke or replace are important, cross-cutting enablers. They will allow the Government to overhaul EU laws in secondary legislation across the many different sectors of the economy where, if left, many pieces of REUL risk becoming fixed features of the statute book that are ill suited to the UK. As my noble friend Lord Hamilton said, extending the date to 2028 would also add to uncertainty. The noble Baroness, Lady Fox, was right to remind us that some of the public think that the process of EU reform is sluggish, but I think that 2026 gives us ample time.
Lastly, I turn to Amendments 124 and 125 in the name of my noble friend Lady McIntosh of Pickering. In broad terms, they would change the dates that enable the power to act upon assimilated law. I will not go through the detail of why these amendments do not work because I have already explained it quite clearly. The powers to revoke or replace are already capable of acting on assimilated law for an additional two and a half years after the sunset, which is adequate time to complete REUL reform and provide greater legal certainty UK-wide.
I am sorry to have spoken at length but there were a lot of amendments in this group. I hope this has provided noble Lords with some reassurance on the powers in the Bill, their timeframes and the way in which scrutiny will work, as I tried to set out at the beginning of my speech. With this in mind, I ask noble Lords to withdraw or not press their amendments.
I believe I have a right to reply; I have been corrected so many times today that I do not know what my rights are nowadays.
The Minister seems to believe that robust parliamentary scrutiny is enshrined in a sifting, negative procedure power. I do not agree, I am afraid. Parliament is being sidelined in this Bill. Indeed, I wonder when this radical, revolutionary, un-Conservative Government will seek to abolish Parliament.
On the assertion that the UK Parliament had no real say in EU law, that is the nature of the organisation. Law is made at the level at which it is considered, obviously. However—I made this point at Second Reading—some Parliaments in the EU, notably the Danish one, kept their Ministers on a tight leash. Ministers went to the Council of Ministers from the UK Parliament; if they did not represent the views of the UK Parliament, we have to look at them and their record. The UK Parliament could have done the kind of scrutiny and accountability exercises that the Danish Parliament notably did; if it did not do so, that is the fault not of the EU but of the UK Parliament.
Interestingly, the Minister seems to consider the provisions of Amendment 128 restrictions. So it seems that this Government think that anything that requires consultation, analysis, reason or parliamentary consideration is a restriction on their powers. That is very telling. The Minister also said that these amendments do not fit with this Government’s vision. I find that slightly chilling, to be honest.
The idea that relying on primary legislation would take decades is another old chestnut that we have heard at numerous points in the past four days of Committee. Why, then, did the Government promise primary legislation in 2018 in the then European Union (Withdrawal) Bill? Why did they claim that Brexit would give Parliament back control? Parliament now appears to be inconvenient to the Government’s vision. It is simply not true that relying on primary legislation would take decades; the noble Lord, Lord Hannay, made that point. It need not take that many years but it would mean that this was being done in a much sounder, more considered way.
I am afraid that I found the Minister’s responses unpersuasive. That said, I beg leave to withdraw my proposition that Clause 10 be removed from the Bill.