Retained EU Law (Revocation and Reform) Bill

Committee (4th Day)

Motion

That the House do now resolve itself into Committee.

Amendment to the Motion

Tabled by

At end insert “and that it be an instruction to the Committee that no new amendment shall be considered today after 10.00pm”.

My Lords, following the tabling of my amendment on Friday, there has been positive discussion in the usual channels, and I am pleased to say: not moved.

Amendment to the Motion not moved.

Motion agreed.

Amendment 68

68: After Clause 5, insert the following new Clause— “Conditions for bringing section 3, 4 or 5 into force(1) None of sections 3, 4 or 5 may be brought into force unless all the following conditions have been satisfied.(2) The first condition is that a Minister of the Crown has, after consulting organisations and persons representative of interests substantially affected by, or with expertise in the likely legal effect of, that section on a draft of a report, laid that report before Parliament setting out, with reasons, the Minister’s view as to the likely advantages and disadvantages of bringing that section into force, setting out in particular the effect of that section on –(a) the rights of and protections for consumers, workers and businesses, and protections of the environment and animal welfare, (b) legal certainty, and the clarity and predictability of the law,(c) the operation of the Trade and Cooperation Agreement between the United Kingdom and the EU, and UK exports of goods and services to the European Economic Area, and(d) the operation of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.(3) In relation to section 4, the report must take into account any regulation made or likely to be made by a relevant national authority under section 8(1).(4) The second condition is that a period of 60 days has passed since the report was laid before Parliament, with no account taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.(5) The third condition is that, after the end of that period, both Houses of Parliament have approved a resolution that that section come into force.(6) If both Houses of Parliament have approved a resolution that that section should not come into force unless it is amended in a way set out in that resolution, then the Minister may by regulations amend that section accordingly, and that section may not be brought into force until that amendment has been made.”Member’s explanatory statement This new Clause requires Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles. It also includes opportunity for Parliamentary approval and timeframes for laying reports before both Houses.

My Lords, in moving Amendment 68 I will speak to Amendments 69 and 69A in the name of the noble Baroness, Lady Chapman. I will take a little while; I know we want to make progress today, but these amendments are on legally very significant issues in relation to Clauses 3 to 5. Last Thursday, we discussed the fact that, unlike the sunset under Clause 1, there is no saving provision for Clauses 3 to 5, such as appears in Clauses 1(2). We moved an amendment to try to change that, and perhaps the Government will accept it.

I heard a Conservative MP on “Any Questions?” this weekend assert that Brexit meant bringing democracy back. I think that noble Lords across the Committee who have taken part in the four days of proceedings so far on the Bill would agree that it does not bring democracy back. Instead, it reinforces the executive diktat that, unfortunately, we have become rather used to.

The effect of these amendments, beginning with Amendment 68, would be to require

“Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles”

of EU law. I presume that the Government have conducted such an analysis before bringing into force such wide-ranging changes. In the words of the Bar Council,

“it would be extraordinarily irresponsible were that not done”.

We would like to see a sharing of that analysis; it needs to

“be consulted on, made public, and put before Parliament. The new clause … gives Parliament the chance, in the light of such an analysis, to prevent the bringing into force of those sections or to propose amendments”.

The fact is that the effect and scope of Clauses 3 to 5 are extremely unclear.

Our Constitution Committee stressed that the abolition of general principles of EU law may give rise to inconsistency, with some legal provisions interpreted in line with general principles of EU law and others in line with domestic law. How on earth anybody is going to find their way through that maze we will have to wait and see, but I hope not. If the Committee was to favour Amendment 68 or something like it, perhaps in the analysis that the amendment calls for it would become clearer what the relationship is between Clauses 3, 4 and 5 and Clause 7, which we will come on to later. Clause 7 requires courts to interpret retained EU case law in deciding whether to depart from it. However, if the underpinning of retained rights, principles and supremacy of EU law has been pulled away, what is there left to assist that interpretation?

When he replies, can the Minister explain the effect of Clause 22(6)? It reads:

“Sections 3, 4 and 5”—

the clauses we are discussing at the moment—

“do not apply in relation to anything”,