House of Lords
Wednesday 7 March 2018
Prayers—read by the Lord Bishop of Rochester.
European Union (Withdrawal) Bill
Committee (5th Day)
Relevant documents: 12th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee
Clause 6: Interpretation of retained EU law
49: Clause 6, page 3, line 33, after “cannot” insert “, subject to paragraph (c),”
My Lords, in moving Amendment 49 I shall speak also to Amendment 52. I read the other day that the two most disbelieved statements are, “The cheque is in the post” and, “I am from the Government and I am here to help you”. Here is another one: this amendment is designed to be helpful to the Government, and I hope they will genuinely believe that. It seeks to formalise the agreement reached in December 2017 in the UK/EU joint report in relation to EU citizens and their ability to refer cases to the CJEU.
Clause 6(1)(b) states that, “A court or tribunal”,
“cannot refer any matter to the European Court on or after exit day”.
However, paragraph 38 of the joint report agreed by the UK Government last December states:
“This Part of the Agreement establishes rights for citizens following on from those established in Union law during the UK’s membership of the European Union; the CJEU is the ultimate arbiter of the interpretation of Union law. In the context of the application or interpretation of those rights, UK courts shall therefore have due regard to relevant decisions of the CJEU after the specified date. The Agreement should also establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it. This mechanism should be available for UK courts or tribunals for litigation brought within 8 years from the date of application of the citizens’ rights Part”.
We are not taking away any powers from the courts or tribunals. They decide whether to seek advice, and when they get it they then decide whether to take account of it. It does not in any way undermine the principles the Government have adduced for withdrawal. I hope, therefore, that this is helpful. All I am suggesting is that the joint agreement the UK Government have put their name to should be incorporated into the Bill, and I have helpfully provided an amendment to enable them to do that.
I also draw the Minister’s attention to the draft withdrawal agreement presented on 28 February by Michel Barnier to the Brexit Steering Group. I refer specifically to Article 83, which states:
“Where in a case before a court or tribunal in the United Kingdom a question is raised concerning the interpretation of the Treaties or the validity or interpretation of acts of the institutions, bodies, offices or agencies of the Union relating to facts that occurred before the end of the transition period and where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment in that case, it may request the Court of Justice of the European Union to give a preliminary ruling on that question in accordance with the procedural requirements laid down in Article 267 TFEU. The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings on such requests”.
Do Her Majesty’s Government agree to that proposal by Monsieur Barnier in the draft withdrawal agreement and do they plan to amend the Bill accordingly?
How would the noble Lord’s proposed new provision work in the event of there being no agreement and is he not anticipating the terms of an agreement?
As I understand it, all that we include depends on there being an agreement. It is not just my amendment; it is the whole legislation. I beg to move.
My Lords, I fully support my noble friend’s decision to raise these questions, which are very important. I suspect the Minister will say that the Government have given a commitment that, when the withdrawal agreement is concluded, it will become before this House an Act of Parliament and we will therefore have the opportunity to debate it then. However, there are two powerful reasons why citizens’ rights should be incorporated in this Bill now.
The first is the high level of anxiety that EU citizens have about their position. I am sure there is relief that, in principle, an agreement was reached in December, but there could still be many a slip between cup and lip in its ratification. Those citizens’ rights should be guaranteed now to provide reassurance.
Secondly, I listened hard to an earlier contribution from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in which he said that the main utility of this Bill is to make sure there is legal certainty if we crash out of the EU— because, assuming that negotiations work, there will be a transition period during which EU citizens’ rights will not be affected. The problem we are dealing with particularly in this Bill is the risk of a crash-out. Of course, the Government will say to us, “Well, we’re very determined there won’t be a crash-out”, but they will not exclude that possibility. It was clear from the intervention at the end of my noble friend Lord Foulkes’ speech that the noble Lord, Lord Forsyth, actually relishes the possibility of a crash-out because he thinks, wrongly, that this is some bargaining leverage we have over the EU.
I will give way in a moment.
The question is whether we want the rights of EU citizens to be used by the likes of the noble Lord, Lord Forsyth, as a bargaining chip in these negotiations. If we do not, then we should support amendments along the lines of that in the name of my noble friends Lord Foulkes and Lord Adonis, to give people the security to which they are entitled.
I am most grateful to the noble Lord, but he must not put words into my mouth. I simply asked a straightforward question as to what the position would be if this amendment were carried in the event of no deal. Clearly, it would create enormous confusion. There is the separate issue of why we should allow extraterritorial jurisdiction on the part of a foreign court, but I was not embarking on that particular argument. If this is the best the noble Lord can do to support the amendment, I am sure he will support the noble Lord, Lord Foulkes, in withdrawing it in due course.
The noble Lord, Lord Forsyth, is clearly saying that he thinks there is a real possibility we are going to crash out of the EU. We have heard that from him on other occasions and from people who agree with him. David Davis wrote to Conservative MPs to say that it was a possibility that we would not pay up the money unless we got a good free trade agreement. The fact is that any deal is better than no deal: no deal would be an absolute disaster for this country. But if there is a serious risk of no deal from Members of the governing party—I am sure the Government do not want that but there is pressure in that quarter—I believe we would be right in this Bill to guarantee the rights of EU citizens living in this country.
The noble Lord said that we seem to be able to crash out and to have no deal as a bargaining chip. Surely, we either crash out or we have no deal as a bargaining chip—we cannot have both.
The point I am focusing on is that this is our opportunity to guarantee the rights of EU citizens in the event of there being no deal.
My Lords, I deeply regret and resent the fact that we are having to discuss this and waste the House’s time. We had an opportunity at the beginning of the day to make an unequivocal declaration that we would grant these rights to EU citizens. We voted in that sense, a number of us spoke in that sense and we had a large majority in that sense. Yet here we are, arguing. Frankly, I agree that the amendment is necessary, but we are now arguing unnecessarily about something we could have taken the moral high ground over and dealt with immediately after we had activated Article 50. It is indicative of the mess into which we have got ourselves, and we are taking up so much parliamentary time that should be devoted to other things. I bitterly resent it and wanted to get that on the record.
My Lords, as someone who is a co-signatory of the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock, I support what he said and also endorse what the noble Lord, Lord Cormack, said. This should be a no-brainer.
The United Kingdom Government have agreed with the European Union; the terms of that agreement were set out in paragraph 38 of the document of 8 December 2017, and the noble Lord, Lord Foulkes, has spoken them into the record. If one goes back to paragraph 33 of the same document, it is interesting to read that:
“It is of paramount importance to both Parties to give as much certainty as possible to UK citizens living in the EU and EU citizens living in the UK about their future rights. The Parties have therefore reached agreement on the following specific set of arrangements to implement and enforce the citizens’ rights Part of the agreement”.
Admittedly, a later paragraph suggests that the bestowing of or guarantee of rights will come in the withdrawal agreement implementation Bill, but if one reads the paragraph on the consistent interpretation of citizens’ rights, one will see that there is no such commitment there with regard to a future Bill. It would not be right for this Parliament to pass a Bill which cuts off recourse to the Court of Justice of the European Union when we have already agreed that that avenue should be open in this specific case of ensuring consistency in determining the rights of EU citizens living in the United Kingdom and UK citizens living in the European Union.
I say to the noble Lord, Lord Forsyth, that if at the end of the day there is no agreement and we go crashing out, surely he is not suggesting that we would not honour our commitment. We have made that commitment to European Union citizens living in the United Kingdom and United Kingdom citizens living in the European Union. It must send some very alarming signs to UK citizens living abroad if it is suggested that, should we go crashing out, nothing will be done to establish or secure the rights of those citizens—
Did the noble and learned Lord notice that in the Prime Minister’s Statement on Monday, she specifically mentioned that the United Kingdom might seek to achieve associate membership of certain European agencies? She said that,
“the UK would also have to respect the remit of the ECJ in that regard”.—[Official Report, Commons, 05/3/18; col. 26.]
Now that the Government themselves have recognised that there will be a continuing role for the European Court of Justice, is this not an absolutely appropriate further role that it should play?
It is not only appropriate as a further role, but one we have already agreed to. As the noble Lord, Lord Cormack, said, on many occasions noble Lords from all sides of the House have spoken about securing the rights of EU citizens in the United Kingdom and UK citizens in the European Union. This amendment fleshes that out and it would be wrong to pass a Bill which denied something we have already agreed.
My Lords, I support my noble friend Lord Foulkes and I will speak to Amendment 54, which stands in my name. I will not detain noble Lords for long because much of what I intended to say has already been said and covered. Agreement on the wording of this amendment has been expressed by various Benches in this House, so this is not simply a one-sided argument. It seems to me that this country’s reputation globally will simply go down the Suwannee if we are prepared, at one moment, to say that we agree to certain protections for people who have become embroiled in this dreadful situation in which we find ourselves and then, a moment later, decide that, no, we do not agree with that and will not give those protections. What will people think of us as a nation if that is how the leadership of this country behaves?
My amendment would extend the requirement for certain persons to be able to refer their legal matters back to the European Court of Justice to a period of eight years. I trust that noble Lords will understand the need for such an extension. There is a statute of limitations existing for six years; if we do not include a period of coverage, people whose claims may well start quite late after the leaving date may well find themselves without that coverage, which I hope will be agreed.
My Lords, I have put my name to Amendment 52, which was spoken to by the noble Lord, Lord Foulkes, and I support his comments and those made by the noble and learned Lord, Lord Wallace, and the noble Lord, Lord Cormack, a moment ago. I wish to place the amendment within its context, which is EU citizenship—the citizenship of people resident in the United Kingdom, and on the European mainland. These comments are particularly relevant in the context of the interventions of the noble Lords, Lord Forsyth and Lord Liddle, a moment ago.
I am a European; that is my identity. I am Welsh; that is my nationality and, as noted on my European passport, I am a citizen of the United Kingdom. I have rights and obligations under each of these three headings. Some of those rights are protected by international law, some by European law, some by UK law and some by Welsh law. Taking established rights away from a citizen is a very serious matter. Citizens are protected in generality against any negative impact upon them that may arise from taking some of these rights away from them.
There is clearly a wide range of such rights but I shall refer to only one. Page 32 of my passport states that if you need consular assistance when you are outside the EU in a country where there is no British embassy or consulate, you can get help from the embassy or consulate of another member state of the EU. That is a right that I have today but which I may lose as a result of the UK leaving the EU. In other words, Brexit may be taking away from me a right that I currently have by virtue of being a European citizen. This is one of many rights that we have as citizens living within the EU. For those rights to be meaningful, there clearly has to be a process of redress whereby a citizen can seek to protect his or her rights through the courts, and in this context Amendment 52 is highly relevant as it would allow citizens to pursue their rights in the European courts after exit day, where that is relevant.
The noble Lord is making an extremely good speech with which I agree so I am sorry to break in. He referred to being a citizen of the UK. Under Maastricht, he is also a citizen of the EU. Is he aware that the ECJ is beginning to receive many messages from British citizens, both here and living in other EU countries, asking for the ECJ to consider giving protection to them even post-Brexit if necessary?
I am very grateful to the noble Lord, Lord Dykes, for his helpful intervention. We are all European citizens; it is a European passport that we carry at the moment. Some of our rights are enshrined in the context of Europe, some in the context of the UK and some—in my case, as I mentioned a moment ago—in the context of Wales.
I am not going to speak at length to this amendment because there are several noble Lords who will speak with greater authority on the legal positions involved. However, I want to use the principles underpinning the rights of citizens in the EU to say a brief word about EU citizenship in a broader context: the rights afforded to us at present as citizens of the EU and the status of those rights once we leave. These matters are highly germane to the amendments before us—and they will not go away.
I want to present to the Committee an observation: according to the December agreement reached by the Prime Minister, citizens of Northern Ireland will still be EU citizens after we leave. I am not sure where that leaves the rights of everyone else in the UK.
I am grateful to the noble Baroness for introducing that point; I was going to move on to it a little later but I shall do so now. Northern Ireland creates a precedent, if the undertakings that have been reported are indeed carried out. It is a part of a union of countries that may be retaining its rights after the other parts of the UK may lose theirs. Of course, there is a precedent in the context of Ireland: people in the Irish Republic maintained many of the rights relating to the UK that they previously enjoyed after the Republic was formed, and for many people those rights continue up to today. As the noble Baroness has said, many of the rights relating to the EU of citizens of Northern Ireland may well continue after Brexit. If it is possible to negotiate such rights for some of the citizens of the UK, why cannot such rights be ongoing for all its citizens?
Do we not have a particular responsibility for the smallest group of citizens for which this Government have responsibility—namely those living in Gibraltar?
I am sure we shall we come on to the position of Gibraltar in greater detail at another time. In many ways this parallels the issues that arise in the context of Northern Ireland. If a solution to Northern Ireland were enshrined which allowed the free movement of people and goods across the border, that may well solve the problem of Gibraltar as well. We need to bear in mind our responsibilities for Gibraltar and to get an amicable settlement which would be acceptable in the European context, and therefore acceptable to Spain as well as to the people of Gibraltar. I am grateful to the noble Lord, Lord Cormack for raising this.
I want to use the principles underpinning the rights of citizens in the UK to say a brief word about citizenship in the broader context and about the rights afforded to us at present as citizens of the EU, as well as the status of these rights once we leave. These matters are highly germane to the amendments before us. Incidentally, there is an Opposition Day debate in the House of Commons this afternoon, initiated by my Plaid Cymru colleagues, on this precise topic.
By pursuing what may become a no-deal Brexit, the UK Government would, in effect, strip—at least potentially—our citizens of some of their rights. Our rights to travel, live and work across Europe will be curtailed. Our children’s rights—
I am grateful to the noble Lord. Currently, a British lawyer, dentist or doctor can practise in any other European country. There is a reciprocal right for nationals of other EU countries to practise here. We are losing dentists and doctors because of the certification process which will be subject to negotiation on the basis of mutual recognition. Is this right, which could be curtailed, justiciable under his amendment?
Of course, this amendment provides a mechanism to create a redress for people who feel that they are losing these rights. It may not be the only mechanism available. There may be provisions under international law, which I shall mention before I close. It is not only our rights that are being curtailed, but the rights of our children—the rights to study in any of the other 27 countries across the EU may well be lost. It is questionable whether, in the context of these rights, we shall thereafter be able to call ourselves European in the full meaning of the word. I am a European. I am a Welsh European and no Government should be able to take away from me or from any citizen of these islands their right to their European identity, nor any of the practical rights they currently hold by virtue of that identity.
It is by virtue of their de facto European citizenship that the citizens of these islands currently have recourse to the European court. Stripping people of their citizenship against their will is illegal under international law. I have tabled another amendment which explores the retention of EU citizenship. I hope this will be debated at a later stage. Suffice it to say, at this stage we need these amendments to safeguard the position of people facing such a serious threat after Brexit. I am delighted to support the noble Lord, Lord Foulkes.
My Lords, of particular interest to me in this Bill is the way in which ordinary people would be most directly affected by leaving the EU. I have tabled Amendment 210 which asks the Government to support retention of European citizenship where the individual British citizen wishes to do so. Although not explicitly stated in the amendment, it would also cover those who had not yet acquired European citizenship at the time of Brexit. I am grateful for the support of the noble Baroness, Lady Humphreys, and the noble Lords, Lord Judd and Lord Davies of Stamford.
The importance of European citizenship and the effect of its loss at the individual level has not been sufficiently considered or explored, either before or in the 20 months since the referendum. Nevertheless, its retention has been consistently advocated by Guy Verhofstadt, the European Parliament’s representative on Brexit. Last year, it was the subject of a paper by Volker Roeben, then professor of international law at Swansea University, for Plaid Cymru MEP, Jill Evans. From the Government’s point of view, a useful conclusion of this paper was a belief in the feasibility of an associate citizenship, if citizenship rights were to be extinguished after Brexit. Roeben’s belief that this should not be so was given some traction following the submission last month of a request to the European Court of Justice for a preliminary ruling in the case brought by British residents of Amsterdam. It is early days yet, but it is worth noting in the context of my amendment, this statement from the judgment:
“Once legally acquired, EU citizenship is an independent source of rights and obligations that cannot be simply reduced or affected by actions of a national government”.
The loss of European citizenship would not just adversely affect the British abroad and, indeed, European citizens in the UK, but every British person living in the UK. Following the referral to the ECJ, QC Jolyon Maugham, supporter of those who brought the case in the Netherlands, made a particular point of saying that the final outcome of this case would have implications for residents of the UK as much as those abroad. The loss would be of all those rights that EU citizenship embodies, both in terms of the principle of that citizenship—the loss of identity that many would feel deeply, and which cannot be overestimated—and the very real practical concerns about rights and opportunities that would be lost or compromised, including being able to freely travel, work, study and raise a family abroad.
This is likely to have the greatest effect on young people living in the UK—an effect with no silver lining and which can only register negatively, as a loss. At the level of the individual citizen, it is not replaced by anything. European citizenship is additional to British citizenship, and that is the reality, whatever the outcome of the case begun in Amsterdam. As Sunday’s Observer editorial responding to Theresa May’s speech, but which might just as well have been referring to the potential loss of citizenship, put it:
“It was a defeat for young people, British and European, who, more so than older generations, will perforce inhabit an ugly new world of harder borders, work permits, bureaucracy and pervasive state intrusion”.
The referendum notwithstanding, many British people, both abroad and in this country, are angry that they should be stripped of their European citizenship without their own individual consent. For all these reasons, a Brexit that does not allow the retention of individual European citizenship for those who wish to retain that citizenship is a hard Brexit—more than that, it is a brutal Brexit, whatever the outcome on the wider national scale in terms of any trade deals.
What is being asked for in this amendment is very simple, and the precedent already exists, as this is no different from the dual citizenships that some in this House possess. The amendment asks only for the continuing acknowledgement of that additional citizenship. Do we now wish to start stripping people of all citizenships that are not British—for example, Australian, Canadian, American, Indian, Chinese? The list goes on.
At the level of the individual, the only solution that would be realistic or fair is that the 52%—or whatever the figure is now—may hand in their European passports and renounce their European citizenship, and the 48% retain theirs. The reality, of course, would be quite different. We have heard in the news about noted leavers who have bought, or are buying, EU citizenship as we speak. As I am sure others in this House do, I know of those who voted leave who, in circumstances where they are lucky enough to do so, are applying for European citizenship for themselves and/or their children, sometimes through having a husband or wife who is an EU citizen. Hypocritical? Of course it is, but it is also testament to the significance and desirability of retaining that citizenship and the real loss involved, with those who are lucky or rich enough becoming the first-class citizens of tomorrow, when previously it was an entirely equal arrangement for all of us.
The loss of European citizenship will in itself create an unequal society within the UK. Look too at Northern Ireland, as has been remarked upon: all those born there—about 89% of that country—will retain European citizenship, further turning the rest of us in the UK, in effect, into second-class citizens. Of course, I am not suggesting that Irish citizenship be given up. Late last year, Theresa May gave her agreement to an understanding that goes back to 1917 and that was rightly confirmed in the Good Friday agreement. Better, surely, that all of us who wish to should be able to retain our individual European citizenship. The Minister may say that that offer is not on the table, but a Government and a Parliament that really want to bring this country back together and heal the divisions would take the initiative and put it on the table. That is the right course of action, and I hope that the Government accept this amendment.
I will stay away from the law on this, but when it comes to travel and so on to the EU, is there not a discussion to be had, the likelihood being that most people—unless they are going to work there—will be able to move around Europe without a visa? If I may say so, it is therefore not quite as disastrous as the noble Earl suggests.
I am not sure that is the case at all. It is very likely that visas will be introduced.
It may well be that we benefit from a visa waiver but it is also likely that we will have to apply for what is often called a “visa lite”, which similar to the United States’ ESTA. The EU is bringing in something called ETIAS and for most people it will not amount to a big difference: you have to go online, pay a fee and answer lots of questions about health, criminal background and so on. We may not require a visa but we will need a “visa lite”, so it will not be hassle-free.
Absolutely. Whatever happens, we will be at a disadvantage to everyone else in Europe and that is really significant.
My Lords, I support the amendment. When this whole matter originally came before the House, we had the firm assurance from the Front Bench opposite and the strong assurance from the Prime Minister that this was to be a top-priority issue in their considerations of our future. As the noble Lord, Lord Cormack, said so powerfully, here we are, way down the road, and we have made no progress whatever.
The reason why I feel so strongly and passionately about this issue is that I fear that we are demeaning and undermining the whole concept of citizenship. Citizenship is something that people have fought for and struggled for centuries to establish. There are thousands and thousands of people from Britain in Europe. I declare an interest: in my extended family I have family members living in Europe and family members living in this country who are married to Poles, Czechs and so on, and it is a very rich experience. Such people have gone to Europe in the confidence of citizenship and all it has meant historically—to make new lives and build their future in the knowledge that they have citizenship of Europe.
Do we or do we not stand by the concept of citizenship? If we do, how can we contemplate any future in which we have not absolutely guaranteed that people have their rights of citizenship? My noble friend referred to anxiety being out there, and it certainly is. We are talking about men, women and children; about the futures of people who are working; about vulnerable people who have reached old age in the context of what they believed was European security—about real human situations. We need firm, unequivocal assurances from the Government that we believe not just in the right of citizenship, but in the whole concept of citizenship that has been established across Europe in our history. We want cast-iron guarantees that, in one way or another, that is going to be fulfilled.
My Lords, I shall speak to Amendment 211, which is in my name and deals with our rights but in a slightly different way. It would ensure that after withdrawal, our rights and protections remain intact by maintaining the standards at home and at work that we have come to expect in our daily life as part of our normal existence, and that those standards would not be sacrificed or lowered in any future negotiations.
I tabled this amendment some weeks ago and was pleased to see it reflected in the Prime Minister’s speech last Friday and in her Statement on Monday, when she spoke of maintaining current standards in some sectors. My amendment calls for them to be maintained in all sectors, because we cannot pick and choose where our quality of life is concerned. Even Monsieur Barnier seems to agree, and in his recent draft document he speaks of equivalent standards.
Like my noble friend Lord Foulkes, I think this amendment is helpful to the Government, because it accords precisely with their own industrial strategy of building on our strengths by racing to the top. Lowering our standards, on the other hand, implies a race to the bottom. Rightly or wrongly, trade agreements are negotiated in secret. Yes, trade deals involve plenty of give and take and bending of the rules, but this amendment ensures that, whatever the outcome, these negotiations will not damage our normal way of life.
On Monday, the Prime Minister spoke of the EU Chemicals Agency, and she was right to do so. Through REACH—the registration, evaluation, authorisation and restriction of chemicals—we ensure that 9,000 chemicals are proven safe before they are made available to the general public. This is the precautionary principle at work. In some countries, products and services are withdrawn only after they have been shown to do harm. This amendment ensures that we do not give up the precautionary principle and allow ourselves to become a dumping ground for untested products and services.
Some say that these standards are just red tape and nannying, and that if consumers do not want to buy products that are made to lower standards, they will see it on the label and choose not to buy it. I put it to the Minister that this is totally unacceptable. Some say that all this can be delayed to a later stage. I say that it has to be included in this withdrawal Bill, so that from day one, Whitehall, local government and public institutions all know that they cannot make decisions that lower our standards.
We also know that non-tariff barriers are the biggest barriers to trade. Most of these non-tariff barriers relate to standards. Maintaining our standards will ensure the least disruption to trade and the maximum continuing inward investment in technical development. Indeed, it is important that we continue to sit at the table setting these standards—standards which are acceptable in many other countries, including Asia, Africa and elsewhere, not only because they facilitate trade but because they illustrate a shared vision.
Where we do not accept EU standards, this amendment, and my amendment that we will come to later, calls for the Government to set up the institutions to enforce them. These institutions must be independent of government. The importance of independence is illustrated by the fact—
I am most grateful to the noble Lord and I understand the point he is making about international standards and international bodies. However, the effect of his amendment is, surely, that the British Parliament would be tied, in future, to decisions made by the European Union and the European court. Why does he not trust this Parliament to set regulations that are appropriate for the standards for our own people?
I do trust Britain to set its own standards, I just do not want to see them lowered. I am concerned that they will be lowered because of trade negotiations and the give and take that will go on in negotiating withdrawal.
On that point, why does the noble Lord not think it possible that we might set higher standards, as for example we have done in respect of paternity rights and other matters?
I would very much welcome setting higher standards and am sure that all noble Lords would do so. My concern is that we should not lower them, because that is one of the rights we should not be giving away.
My Lords, does the noble Lord agree that in her speech last week, the Prime Minister said that she wished us to retain an association with the European Medicines Agency, the European Chemicals Agency, and the European Aviation Safety Agency, specifically to mirror 100% every standard that they set? The noble Lord, Lord Forsyth, says that we still have a choice. No—if we are associate members of those bodies, not only do we not have a choice but we agree that we are bound by the decisions of the European Court. The Prime Minister set out very clearly how damaging it would be were we not to be members of those bodies, and therefore why we should retain membership of them.
The noble Lord is absolutely right and in a later amendment, I will call on the Government to set up institutions which would not accept the European standard but enforce our standards—institutions that are independent of the Government. The importance of independence is illustrated by the fact that the main reason why Ministers are doing something about poor air quality in some of our cities is the risk of fines or legal action from the EU, possibly through the European Court of Justice.
As other noble Lords have observed, we are now being less doctrinaire about the European Court of Justice. Being doctrinaire is the reason why we do not want EU standards because of the possibilities of disputes being settled by the European Court of Justice. But many institutions which enforce these standards have their own systems of settling disputes, and these systems have stood the test of time. So whatever the outcome of our withdrawal negotiations, a major concern for Ministers must be the disruption to our way of life and to trade. This amendment would go some way towards helping Ministers to deal with this concern and I look forward to the Minister’s reply.
My Lords, I shall speak to Amendment 202, which is in the name of my noble friend Lady Smith of Newnham, who is unfortunately unable to attend because of illness. It is also in my name and that of my noble friend Lord Roberts of Llandudno and the noble Lord, Lord Judd. Before going on, I fully agree with what has been said in this debate about the need to retain EU citizenship for us all, and about the hypocrisy of some of those who supported and continue to support leave, but who have somehow managed to acquire a passport of an EU member state, such as Malta. That enables them to continue enjoying the benefits which they are quite happy to deprive the rest of us of.
Amendment 202 calls on the Government,
“to maintain, preserve and protect the rights of”,
EU citizens in the UK. I therefore very much agree with the remarks of the noble Lord, Lord Cormack, about the fact that that has not been done. We are seeking a guarantee that existing rights will remain unchanged. The Government have had the opportunity in the last 21 months to give a unilateral guarantee that existing rights would be retained. They were invited to do so by the EU Select Committee, in a report produced under the chairmanship of the noble Baroness, Lady Kennedy of The Shaws—I had the pleasure to serve on that sub-committee—but have not done so. They also had the opportunity to try to ring-fence the discussion about citizens’ rights from all the other matters being discussed within the withdrawal agreements but, unfortunately, they have not done that.
EU citizens resident in this country and British citizens resident in the EU 27 have indeed been used as bargaining chips. That has led to great distress for many of the 5 million affected citizens, who live in a state of anxiety and limbo that was not helped by the words of the Prime Minister in her speech to the Conservative Party in October 2016 about “citizens of nowhere”. She has now resiled from that kind of terminology, but unfortunately the damage has been done in that the tone is somehow one of, “You do not belong here if you have multiple allegiances. It is not good enough to be a contributing and responsible person in this country”. The Government still have a chance to offer unilateral guarantees and I invite the Minister to tell us today that he is going to ignore the mire into which all of this has become embroiled and just give a straightforward guarantee.
Many ambiguities and gaps still exist in the current state of play over the discussions about settled status. Some of the issues are being taken up in correspondence with Home Office Ministers on the part of the EU Select Committee. The problem is that settled status is not the retention of the same rights and protections that EU law currently confers on people; it is based on UK immigration law and has all the features of that law, including the hostile environment that is currently being created. People will have to apply for settled status. It will not just be a question of carryover or cut and paste—they will have to apply. Apparently, the Home Office expects the vast majority of cases to be granted, although that begs the question of which ones will not be granted to people who are currently resident here.
Will the noble Baroness explain how we could possibly deal with several million people unless we invite them to apply?
There could be a simple declaratory process. If any parliamentarians in this Chamber have ever had to deal with the Home Office on behalf of one of their constituents, as I did when I was an MEP, they will know what a happy—or otherwise—process that is. Something simple and declaratory such as going to the local town hall could be worked out. It should be light touch: a declaration of existing residence. That is quite different from having to apply to the Home Office.
The fear has been expressed on behalf of the group, the 3 million, that perhaps around 10% of people might fall through the cracks because their application is rejected or because they do not apply. Some people are not very aware of what is going on in the law or they do not have access to computers and so on. There is no legal presumption in favour of granting settled status to all residents who are legally living here before exit day, which begs another question. Perhaps the Minister could explain to us what exactly is going to happen to those people who arrive during the transition period. That, of course, is something the Prime Minister has conceded, in that they will have a status, but it is slightly unclear how it is going to work.
There has also been no clarification of the continuation of all the individual economic rights and recognition of qualifications that EU citizens currently enjoy and, as I have said, no guarantee that the registration will be simple and light touch. There is supposed to be a digital application system. Can the Minister tell us exactly where we are in the construction of that system? We all know that IT projects, in particular Home Office IT projects, have a habit of becoming problematic. Moreover, the backstop to all this is that the European Parliament will have to approve the withdrawal agreement, including the conditions for EU citizens. I note that Mr Verhofstadt tweeted yesterday,
“the European Parliament expects a cost free and burden free registration process”.
It wants to ensure that there is no discrimination between EU citizens and British citizens, which of course raises the question: are the Government planning to introduce ID cards by the back door in order to say that we are all being treated the same?
There are many holes and gaps that the Home Office is still unable to answer questions on. I do not have time to cover them all but I would like to ask about comprehensive sickness insurance—the requirement that people have private medical insurance—because very mixed messages are being given about it. The position of the European Commission has always been that if people are allowed to use the NHS, that amounts to comprehensive sickness insurance under the directive. It started legal action but that has apparently not progressed.
Home Office guidance seems to confirm that comprehensive sickness insurance is not a requirement for acquiring settled status, but I will read out a reply to a freedom of information request that appears to make little sense. It remains the Government’s intention not to require evidence that economically inactive EU citizens have previously held comprehensive sickness insurance in applications for settled status, but it also remains the case that:
“In some circumstances, comprehensive sickness insurance is still required for the purposes of accessing the healthcare system in the UK”.
So you do not need to show evidence that you have it—but you will need it in order to access the healthcare system. Could the Minister kindly explain the apparent contradiction between those two statements? This is causing people a lot of anxiety, as the Minister is well aware. A lot of stay-at-home parents, spouses who have been economically inactive, carers, disabled people, pensioners and so on are extremely anxious about what is going to happen on this subject. Yes, it is technical—
I am very puzzled as to how any of this is relevant to the Bill we are discussing. Does the noble Baroness not understand that this kind of stuff, which is being repeated time and again, is actually doing more harm than good? It is raising issues for people who do not face them. It is quite clear that the maximum is being done to help people qualify for residence in the UK. We could not do more than we have done. Frankly, this is just making trouble.
It is highly relevant to whether people are being guaranteed their existing rights to legally reside in this country. I am quite surprised that the noble Lord thinks it is not relevant to an amendment that is about maintaining and guaranteeing the existing rights of EU citizens. The confusion is caused by the Home Office’s lack of clarity, not by me.
I end on that note. I would like some answers from the Minister to these detailed questions and many others.
My Lords, I want to make two short points. The first is that the precedent of giving rights in other countries when there is a separation is set up very well by the arrangements between ourselves and the Republic of Ireland in relation to Irish citizens and their rights in our country, which are guaranteed by statute in a number of cases.
Secondly, on the idea that we have to refer all these matters to the European court, anyone who reads the judgments of our courts from day to day will realise that the fairness they exhibit towards foreign citizens is of the highest possible standard. I know of no country in the world and no court in the world that succeeds in getting a higher standard; there are others that have an equally high standard, but I know of none that has a higher one. It would be a most retrograde step for this House to do anything that suggested to people in Europe that they could not get justice from the courts of this country.
Just to clarify, my amendment does not suggest that—quite the reverse. It would be the British court or the British tribunal that took the decision whether or not to refer such matters to the CJEU. It would still be the decision of a UK court.
I think that is meant to be an intervention, because I have not quite finished. The situation is that the British courts, the Supreme Court in particular, have discretion to look at any judgment that they wish, and to raise any question they wish in these judgments. There is nothing in the present Bill that impedes that, except in respect of questions of European law, because the courts themselves, and the members of the Supreme Court, have been anxious that if they paid too much attention to the European court after Brexit, they might be accused of being involved in politics. They have sought a direction from Parliament on this matter, and that has been attempted, and I hope it is successful.
I personally do not share the animosity that exists in some quarters towards the European Court of Justice. It is over 30 years now since I often appeared before them, and I have nothing but praise for the way in which they do things. They do things very differently to us. There are far fewer oral hearings—at least, there were when I did it, which was a long time ago. There is much less oral pleading than there is in our courts. Actually, our courts have moved slightly in that direction in recent years, since I was last involved with them—and in some cases quite far in that direction.
The respect I have for the European Court is of the highest order, but I do think there is a difficulty because, after Brexit, no judges or advocates-general of the British Bar will be members of the court or advocates-general in the court. That is an important factor to be taken into account in the arrangements. I am not part of the negotiations—I have nothing to do with them—but I do believe that that point has to be taken into account. There is a usual rule that the people administering justice are the people who are in accordance with the arrangements between states. International courts, for example, may not have representatives from all the states that appear before them, but there is a question to be considered in that connection, because the Court of Justice referred to in the amendment will not be the Court of Justice as it is now.
My Lords, I would like to intervene, following what the noble and learned Lord, Lord Mackay, has said, and referring to the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock. One of the problems I have faced since looking at this Bill, is trying to find hard examples of situations in which the Supreme Court would wish to refer a matter to the European Court of Justice.
There is a very good example reported in Monday’s Times of a case called SM (Algeria) (Appellant) v Entry Clearance Officer. I will take a moment to explain what the case is about, because it is a good example of citizens’ rights. SM was a little girl, who was placed into the legal guardianship of EU citizens, who happened to be in Algeria. The question concerned her position in coming to the United Kingdom as a member of that family under the Immigration (European Economic Area Regulations) 2006. Merely referring to those regulations reminds us that they would become, as I understand the position, retained EU law under Clause 2 of the Bill.
The problem arose because the court saw that the regulation had been transposing wording from a directive, which is the normal way in which these things work, but the transposition was inaccurate. This is a situation I have encountered before—it happens from time to time. The question is how to deal with the inaccuracy. The inaccuracy was that while our regulation talked about “family member”— somebody who was put into the legal guardianship of a couple, would normally be regarded as a member of the family—the directive was talking about “direct descendants”, and she was not a direct descendant, because she was not actually related, in that sense, to the people who had become her guardians. In order to resolve that problem, the court found it necessary to refer the matter to the European Court of Justice—which it did on Monday. That was under the existing position.
In resolving the point raised by the noble Lord, Lord Foulkes, it may help to ask how that matter would be handled after exit day. I may be wrong, but my understanding is that it would be for the Supreme Court to resolve the issue itself. The directive would come into EU retained law under Clause 3, so we would have both pieces of legislation to look at. I think that the court, having regard particularly to the way in which we had translated the directive, would give great weight to our own language and regard this little girl as part of the family and therefore entitled to take the benefit of the regulation.
In explaining the situation, I hope I have not made it too complicated, but it is a good example of citizens’ rights, accorded by our own regulations, giving effect to EU law. There must be very many in the corpus of regulations which forms part of EU law. It comes back to the point made by the noble and learned Lord, Lord Mackay of Clashfern. The Supreme Court looks very carefully at the interests of children and would accord every weight to the normal rules about the priority given to the interests of the child in construing the regulation in a sense that fits with our own language. I should have thought that, after exit day, the question of referring the matter to the European Court of Justice simply would not arise because the court would be capable of resolving the issue itself without being bound by the problem of having to refer something which was not that clear. If I may use the English expression, it was not crystal clear; therefore they were bound to refer. Under the situation after exit day, any superior court will be fully able to resolve the problems of interpretation that arise. Will the Minister confirm that, in this situation, there would be no need for a reference because our courts would be able to deal with it perfectly properly, looking at the language of our own regulations, despite the problem that might have arisen in translating them from the directive into English?
I am grateful to the noble and learned Lord. The point made by the noble Lord, Lord Foulkes, in moving this amendment— I referred to it myself—was that, as part of the agreement that was struck between the United Kingdom and the European institutions in December, provision was made to,
“establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it”.
So it is not a case of questioning the ability of the Supreme Court. We have entered into an agreement which says that there must be an opportunity or a mechanism to refer to the Court of Justice of the European Union. How does the noble and learned Lord see the mechanism for giving effect to what the United Kingdom Government have agreed?
I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well
Before the noble and learned Lord sits down, in summary, was he saying that the amendment of the noble Lord, Lord Foulkes, is completely unnecessary?
With great respect, I would not put it in that way. It has given me an opportunity to bring forward an example which I am hoping the Minister will be able to comment on. The noble Lord has raised an important point. We all care about citizens’ rights. I hope I have drawn attention to the context in which one looks at the amendment. It is a well-crafted amendment to which the Minister may have an answer along the lines I have suggested.
My Lords, I speak not as a lawyer—I find it difficult to follow some of these legal arguments—but as a grandfather to seven grandchildren, each of whom was born into European citizenship after the treaty of Maastricht. They are just representative of the more than 18 million others who were born since that treaty was signed. If the Bill were to go through unamended, we would withdraw rights and hopes given to them during the past 25 years. What moral right do we have to do this?
If I spoke today in favour of this Bill, what would I say to Haf, Osian, Manon, Megan, Reuben—I am trying to remember their names—Ianto and Aiden? They would say, “Taid”—which is Welsh for grandfather—“why did you not oppose this? Why did you not oppose the loss of all these freedoms and the availability we had in the previous time? You didn’t do a thing”. I am not the only grandfather in this room; I am not the only grandparent in this room. If a grandparent can vote to withdraw rights that have been cherished by their grandchildren, they are doing a tremendous disservice. To the various concessions in travel, in education and in so many other ways that we get as members of the European Union there will now be barriers, and it will be because we went along with the Bill—I would nearly call it an insane Bill—to withdraw these rights from those who have cherished them and used them during the past 25 years. We were able to choose to be members of the European Union; they were not. They were born into British citizenship; they were born into European citizenship, and, as my friend, the noble Lord, Lord Wigley, said, they were born into Welsh citizenship. We cannot withdraw these things. It is a blind way of treating the future generation.
That is all that I will say at this point. Seriously, we have no right. How will the Minister defend the withdrawal of such rights from 18 million citizens? We should remember that only 17 million people voted to leave; we are talking here about 18 million. How on earth can the Minister defend such a move?
My Lords, I support the amendments. I speak not as a grandmother, although I am one, but as somebody who not only voted for Brexit but campaigned for it. Therefore, I carry quite a heavy burden to help ensure that we get the best outcomes for people living in our country.
When voting to leave, no one voted to lose their rights. The amendments would ensure that the Government safeguarded the rights and protections of people as we negotiate leaving the EU. It has been hard to get much sense out of the Government about their plans for Brexit. The default message is to refer to the Prime Minister's Florence speech or Lancaster House speech, but platitudes about “getting the best deal” or “making Brexit a success” simply are not enough to guarantee that our Government do not risk undermining our basic rights and protections during the Brexit negotiations.
The Government seem unable to agree on many of the big issues and it is unclear who is in charge. In the absence of principled, clear leadership, Parliament must take the reins and do what is right for the majority of people. The amendments would protect both British citizens and EU citizens, people who have built their lives around the opportunities given to them by EU membership. They would force the Government to stop abusing our rights as a political bargaining chip. There should never have been any question over the rights of EU citizens living in this country, but our Government insisted on using our basic rights as part of their struggle to gain bargaining power in negotiations.
It is often conceived by supporters of remaining in the EU that the main motivation for Brexit is a narrow-minded, nasty little racist attitude which blames all our country’s problems on foreigners. I could not be further away from that world view, although I believe that some of the Brexiteers—I have some names here but will not read them out—and others have a lot to answer for in the way that they used migrants as scapegoats for the very real destruction that our own Government have cast upon our society with their slash-and-burn austerity measures. The Government sowed the seeds for a lot of the division and anger that prevail in our country.
I celebrate migrants and migration. Humans have always moved around as we seek opportunities and form new communities. It is an essential part of what it means to be human and without migration we would probably be stuck in isolated little groups, still using flint tools and eating with our fingers. Instead, humans have done the most astonishing things and we have all gained enormously from the massive cultural and technological growth that results from humans meeting humans and sharing ideas, cultures, stories and lifestyles. These amendments would do what is absolutely right and fair. They are about breaking Brexit away from those who espouse anti-immigrant views and saying that Brexit is about being more open, tolerant and diverse than ever before. A Brexit that cannot achieve that is not a Brexit worth having and not one that I will support.
My Lords, if there is to be a commitment to the highest standards of protection of citizens’ rights—I go back to the amendment tabled by the noble Lord, Lord Haskel—this would presumably include the European Charter of Fundamental Rights. But the Bill suggests that we omit that charter, so can the Minister say what would be the mechanism by which those charter rights would be guaranteed for EU citizens who remain resident in the UK?
My Lords, Amendments 160 and 170 are in my name and they would prevent regulations being made under Clause 9 if they,
“remove, reduce or … amend the rights of”,
an EU citizen,
“lawfully resident in the United Kingdom on any day before 30 March 2019”,
or until such time as Her Majesty’s Government have signed a reciprocal agreement with the European Union on the rights of citizens post-March 2019.
The issue here is simple. It is about giving legal effect to the assurance, which the Prime Minister has repeatedly given since Article 50 was invoked, that the rights of European citizens who are currently resident in the United Kingdom will be respected. The Prime Minister said in her October 2017 email to EU citizens not only, “I couldn’t be clearer”—actually, most of the Prime Minister’s statements which are not clear begin with “I want to be clear that”. She said she could not be clearer that,
“EU citizens … lawfully in the UK … will be able to stay”.
She also said:
“When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth”.
If nothing could be further from the truth, why has Parliament not been invited by the Government immediately to give legal effect to the rights of EU citizens resident in this country? It is a very simple issue. The reason why it has not happened is precisely that the Government do want to use EU citizens as bargaining chips. Saying that they do not, when all the evidence is that they do, does not, I am afraid, cut the mustard at all.
The noble Baroness, Lady Ludford, also raised a crucial issue, which I hope the Minister will address. What is to happen to EU citizens who come here during the transition? We all know what the Minister will say: that it all depends upon the agreement. When the Prime Minister brings that agreement down with her tablets of stone, whether that happens in October, November, December or January, it will have to include a precise set of legal commitments on what is to happen in the transition. The only point I make in respect of that, which I hope the Minister might address in his remarks, draws very much on what the noble Lord, Lord Roberts of Llandudno, and the noble Earl, Lord Clancarty, said: that this is a really shabby way of presenting this country abroad.
Let us be clear. People across the world, including people whom we want to work in our National Health Service and make a big contribution to this country, are having to make decisions as we deliberate on whether they can come to this country from the end of March next year. Quite soon, that will be a matter not of months but of days in which they will have to make these decisions.
I am sure that the noble and learned Lord will claim that we are open and that we welcome them coming here. The noble Baroness, Lady Jones of Moulsecoomb, made what I thought was an excellent speech in favour of remaining in the European Union because we would embrace all the rights set out in the treaties. How is it that we can look at people straight and say to them, “This is a great place to come and live. We are going to maintain your rights, but even now, we are not prepared to tell you what those rights will be in a year’s time”? This country is presenting a terrible face to the world. Frankly, I am ashamed of the position our Parliament is adopting towards the rights of existing EU citizens, who still do not have those rights enshrined in law, and of those we are seeking to attract to this country from the end of next March.
As the whole Brexit project starts to disintegrate, nothing is undermining its moral foundations more than our inability as a Parliament—and, indeed, the noble and learned Lord’s Government—to give firm legal undertakings in respect of people who are resident in this country and came here in good faith.
My Lords, does the noble Lord agree that the issue is important not only to those who might be thinking of coming here, but to the people living here now? It is perfectly clear that their confidence has been undermined and they are showing that by voting with their feet. They are leaving jobs which are important to the whole of our society. The longer this debate goes on, having started from a position of, “Let us be clear: no rights will be taken away”, the less confident many people feel about their future.
Before I finish, perhaps I may say that I am grateful to the noble Lord, Lord Cormack, who also got off my chest a lot of the things I feel about this issue.
Perhaps I may respond to the noble Baroness and make one further brief point. The noble and learned Lord, Lord Mackay of Clashfern, said that we should be proud of our courts and the work they do. I entirely agree with him; however, we are told time and again—indeed, it is part of the argument for Brexit—that our courts are of course subservient to Parliament. They implement and give judgments on the laws that are passed by Parliament, which has still not guaranteed the rights of European Union citizens resident in this country. Moreover, because it is not being invited to do so by the Government, at the moment it will not make any declaration about those rights after the end of March next year. That, I believe, is shameful.
My Lords, I want to concentrate on the last point made by my noble friend Lord Adonis and on the arguments made, particularly on Amendments 49 and 52, by my noble friend Lord Foulkes and the noble and learned Lord, Lord Wallace of Tankerness. I do so because the bit that is so critical is implementing what in December the Prime Minister said would be on offer to EU citizens already living here and which we need to put into law. That is an absolute priority and a priority for this Committee.
As we have heard, there is a particular need, because of what the Prime Minister agreed to in December, for the Government to rethink their blanket refusal to allow access to or take heed of the Court of Justice of the European Union within this Bill. It has been written out of the Bill precisely because of the draft withdrawal agreement—it is called a report, not an agreement—produced in December. As drafted, that document will allow access to what I still call the ECJ for EU citizens resident here for another eight years, which is why that is mentioned in the amendment. It would fulfil the undertaking written into the report last December with regard to their rights.
It was suggested in one of the meetings I had with a Minister—I cannot remember who—that everything is fine: we should not worry because it will be put into law by repealing parts of the Bill before us more or less as soon as Her Majesty’s ink is dry on Royal Assent. That is one way of dealing with it, and I gather the idea is that we pass this Bill and then start amending it. But to me, that seems a little weird, given that this Bill is before us now and can be amended in the way required by the December agreement so that we get it correct now. That would provide certainty and would ensure that it is in the correct form—I am sure that if the wording is not quite right, the noble and learned Lord can correct it. It would mean that it is done in good time and not at a rush after October or whenever everything else is settled.
As has been said, dealing with this now would also bed down the assurances that have been offered to these residents, some of whom have lived here for 20 or 30 years and to whom, as has been said by others, we owe a higher degree of comfort than they currently have. The future of these citizens is in our hands. Do we want to give them that security now? As my noble friend Lord Liddle said, some of them are living with high levels of anxiety. I agree with the noble Lord, Lord Green, that most of this will be all right, come the day, but these people are worried because it is not in the Bill that they see going through Parliament. I cannot see why we have wait until Christmas to put it on the statute book, which is when it would happen. We can make a move now. The undertaking on paper is that they could have access for eight years to the ECJ, and I think we should do that.
The noble and learned Lord, Lord Wallace of Tankerness, said that this is a “no-brainer”. I have to confess that, at that moment, my noble friend Lord Beecham said to me that he thought the noble and learned Lord was describing the Government. However, I hope the Government do have brains and will find a way to amend this Bill so that we do not have to amend it once it is an Act, in order to make in law an assurance that has already been given.
My Lords, I am pleased to be able—I use that term advisedly—to respond to the issues raised in the context of these amendments. Given the scope of the contributions, I will perhaps begin by touching on one or two points that have been made by noble Lords in the debate.
The noble Lord, Lord Foulkes, referred to the content of the joint report and quoted, among other things, the phrase,
“the Agreement should also establish”.
The noble and learned Lord, Lord Wallace of Tankerness, did likewise, and referred to the passage about the bestowal of rights that will come with the conclusion of the withdrawal agreement. The noble Lord, Lord Haskel, referred to Michel Barnier’s recent draft—quite accurately, if I may say so. The noble Baroness, Lady Ludford, pointed out that the European Parliament will have to agree to the terms of any withdrawal agreement. That is self-evident.
In other words, these matters are prospective. Why are they prospective? I do not want to be overly technical, and I do not believe that I will be, but we begin with the duality principle of our law. That means that we enter into international obligations at the level of international law and they have no direct impact on our domestic law. For example, the withdrawal agreement will be an international treaty entered into by the Executive. We then implement or bring the rights and obligations of that international treaty into domestic law by way of domestic legislation of this Parliament. That is the duality principle: you have international law and you have domestic law, and you can only have the domestic law once you have the international treaty, because it is from the international treaty rights and obligations that you allow the domestic rights and obligations to be brought into our domestic law. What we have at the present time is a joint report from December of last year. We acknowledge that.
It is not a treaty.
It is not yet a treaty, if I can anticipate the noble Lord, Lord Foulkes, because the position of the EU has been, quite rightly, that there is no agreement until everything is agreed. This has been a staged process. We believe that it is important that we were able to achieve the first stage and that we were able to achieve consensus. It is perhaps better to use the word “consensus” here rather than “agreement”, which can be confusing and sometimes misleading. We have achieved consensus in a number of important areas and, as we carry that forward, we proceed into the negotiation of what will be an international treaty.
As we have said before, once we have that international treaty, we can then draw down from the rights and obligations of that international treaty into domestic law by virtue of the fact that we will bring forward a withdrawal agreement Bill for scrutiny by this Parliament.
Can the noble and learned Lord explain to the House the difference between consensus and agreement?
One has to be careful in the matter of language. We are at one with regard to the first part of what we want to do in the context of withdrawal, but we do not yet have an agreement that is binding in law with the other EU 27. For example, going forward, and during the subsequent negotiations, the EU may come and go as to the terms of the joint report. Indeed, we saw some indications of that when it came out with its draft recently, where issue was taken with the way in which it expressed some aspects of the joint report, particularly with regard to Northern Ireland. I appreciate that, if you want to construe the term “consensus” in that way, it involves “agreement”. The reason why I am trying to move away from “agreement” is that some see the word and infer that there is some legally binding concept. That is not yet what we have. We have a joint report and, therefore, we have consensus. We are moving on to the overall negotiations on what will ultimately be an international treaty.
We all hope that this agreement, or whatever word it is, is fixed soon, but it could be quite late. We may not have the withdrawal Bill until sometime next year and it could be that we are due to leave a month or so afterwards. This part of the Bill affects individuals more than businesses and they will not know whether they can go to court until it is fixed—we may not get Royal Assent until a month or two before we leave. Is that really a good way to treat individuals?
With respect to the noble Baroness, businesses affect individuals, so it is not appropriate to try to draw a distinction between citizen rights and businesses in that context. The right to work involves the right to maintain a business in various countries; you cannot simply draw them apart in that way. As regards regards timing, of course we are concerned to ensure that we achieve a withdrawal agreement sooner rather than later. That is why these negotiations are under way. If perchance no agreement is achieved—and I am not aware of anyone who wishes this, although others will perhaps assert the contrary—we will have to look at how we then deal with matters in the absence of that international agreement.
I am grateful to the noble and learned Lord and I hear what he is saying about the duality principle. Can he conceive of any circumstances in which the consensus reached between the United Kingdom and the European Union on the way in which we should treat EU citizens in the United Kingdom and United Kingdom citizens in the EU would not be taken forward or would fall apart? Can he see any circumstances where that might happen?
At the present time, no, but we are only now undertaking the detailed negotiation of the withdrawal agreement. It may be, for example, that the situation of UK citizens in Europe will alter during the course of those negotiations. It may be that the European Parliament will take a different view on how the rights and interests of those UK citizens in Europe should be approached. The noble and learned Lord will recall that, at an earlier stage, there were some suggestions that the rights of UK citizens in Europe would be limited to the member state in which they were resident at the time of exit. There are all sorts of possibilities and I am not going to indulge in an analysis of those possibilities—we are concerned with achieving certainty. We have achieved, by way of the joint report in December, an expression of joint opinion about where we are going, with regard not only to the rights of EU citizens in the United Kingdom but also to the rights of UK citizens in the EU. Of course we want to bring that in to the final withdrawal agreement, in order that we can then draw it down and implement it in domestic law.
My noble and learned friend is being very honest with the Committee, but in a way that gives me some cause for alarm. He has made it absolutely plain that, at the moment, there is no guarantee. Would it still be possible—I believe that it would—for this Government to give and enact in Parliament a guarantee such as this House voted for at the time of the debates on the Article 50 Bill?
With respect, no, my Lords, because we are not in a position to guarantee that which has been arrived at in terms of the joint report. For example, we cannot by ourselves guarantee the rights of UK citizens in Europe. To try to dissect the joint report and say, “We’ll take one piece out and leave another piece in”, is not a way forward in the context of an ongoing international-level negotiation. It is not the way in which this Government would proceed in that context.
My noble and learned friend is talking in the context of this being an international treaty that has to be transposed into UK law, but surely the amendment addresses the issue of the supremacy of European Union law, which citizens of the EU currently rely on when they live in this country. I thought that the purpose of the amendment was to make sure that those rights continued to exist and would be clarified. That is all that we asking in the Committee today.
With great respect to the noble Baroness, I think that I must respond to my noble friend Lady McIntosh.
Again, that argument rather misses the point, because what we have at the moment is a belief on the basis of the joint report that rights of EU citizens in the UK may be referred to the Court of Justice of the European Union after Brexit, but that is not finalised; it is not yet contained in an international treaty agreement.
We have always understood that we cannot unilaterally guarantee in the context of what is now happening an agreement of two parties. What was said from the very beginning, immediately after the referendum, was, “Give a unilateral guarantee and then we can with almost 100% certainty expect full reciprocity”. That was always what was suggested.
Yes, I would say to the sedentary noble Lord.
With respect to the noble Baroness—who I think invited me to drop all the mire; I am not sure what I am supposed to do about that—the expectation of reciprocity is something that we hope to achieve during the negotiation, and that is ongoing.
Perhaps I may make a little progress.
The noble Baroness, Lady Ludford, also raised the question of settled status. We are intent on putting in place provision for settled status, which can be done pursuant to regulations made under the immigration legislation, in particular the Immigration Act 1971. We plan to open that application process on a voluntary basis in late 2018 in order that people may begin on it. The noble Baroness suggested that it was inappropriate to have an application process and went on to suggest a light-touch process. I suggest that we have an efficient and effective process from the perspective both of the applicant and of those who have to process it.
The noble Baroness also raised the question of arrivals during the implementation period and the need during the implementation period for those arrivals to register. Again, the final outcome as to the rights and obligations of those who arrive during the implementation period will be the subject of negotiation. We hope to take that forward in due course.
Perhaps I may move on for a moment to a number of points that were raised about the Court of Justice of the European Union. The noble and learned Lord, Lord Hope, referred to the recent decision of the Supreme Court in SM (Algeria). I have not seen the decision in the case, but he helpfully outlined the background to it. It involved a situation in which an EU directive had been transposed into domestic law, perhaps inelegantly or inaccurately, or perhaps both. The position is that the Supreme Court was of course bound to refer to the Court of Justice of the European Union; it had no option. Going forward, however, our Supreme Court would be perfectly capable of addressing the interpretation of the relevant domestic legislation and dealing with that itself. I would add one further point. The directive would not be incorporated into retained EU law by virtue of Clause 3, so if there was a post-Brexit decision, the Supreme Court would be construing the domestic legislation, not the terms of the original directive, so there you could have a potential difference of outcome. We acknowledge that and I believe that I addressed the point the other evening.
The question of Irish citizens has been raised. I want to be a little clearer about that point. This is something that predates the Belfast agreement but, to put it into context, the position is not that Northern Ireland citizens will remain citizens of the European Union. The position is this: since 1921, although I may be corrected on that, but certainly since the Belfast agreement, certain residents of Northern Ireland are entitled to apply for and be granted citizenship of the Irish Republic and therefore to hold a passport from the Irish Republic, although not all do, for reasons that we do not need to go into in any detail. Where a citizen or resident of Northern Ireland also holds a passport of the Republic of Ireland, post Brexit, in their capacity as a citizen of the Republic of Ireland they will retain their EU citizenship. Let us be clear that EU citizenship is linked directly to citizenship of a member state.
I am grateful to the noble and learned Lord and I am following what he is saying. Is he in fact confirming that there will be two classes of citizen in Northern Ireland: those who hold Irish citizenship as well and will be able, if there is a border, to cross it totally freely and thus into the rest of Europe, and a second class of UK citizens in Northern Ireland who will not be able to do so?
No, my Lords, there will not be two classes of citizens. Let us take a simple example. If I hold USA citizenship and UK citizenship, I can pass between the UK and the USA because I am a citizen of both countries. If I am a citizen of the UK and a citizen of the Republic of Ireland, I can pass between the two countries because I am a citizen of each state. It is not a case of classification; it is simply a matter of status.
Will the noble and learned Lord clarify a point raised earlier by the noble Lord, Lord Wigley? What is the position of citizens in Gibraltar?
Gibraltar is an overseas territory whose people hold UK citizenship. However, if they do not retain citizenship of another EU country after Brexit, they will not be EU citizens.
As I understand it, they can get a Spanish passport if they so wish, although I do not think that many of them do. Will they continue to be citizens of the United Kingdom and will they be eligible also to get EU citizenship?
This seems to confuse a number of different issues because the parallels are the same as those in the Republic of Ireland and Northern Ireland. If you are a UK citizen in Gibraltar and you are also entitled to apply for and be granted citizenship of Spain, you will then hold dual nationality or dual citizenship, and as a citizen of Spain, for as long as it remains a member state of the EU, you will enjoy the right to EU citizenship. It is no different from the position in Northern Ireland and the Republic of Ireland. In the same way, the noble Baroness, Lady Ludford—perhaps referring to something she may have read in the Daily Mail—talked about people applying for citizenship of Malta in order to ensure they can maintain EU citizenship. This is how it happens, but the fundamental point is that you cannot be a citizen of the EU unless you are a citizen of a member state. That is written into the treaties.
It may appear—and it will almost certainly appear to the Chief Whip—that I have digressed slightly from some of the amendments; he will be watching. I just seek to touch on some of them. I hope I covered in my opening remarks some of the points made. Amendments 160 and 170 were tabled by the noble Lord, Lord Adonis, and Amendment 202 by the noble Baroness, Lady Smith of Newnham. Unfortunately, she was not here to speak to it, but it was referred to. As I have indicated, at the end of the day, we will have to conclude the negotiations in respect of the withdrawal agreement treaty and then draw it down into our domestic law. Tying Clause 9 to a particular outcome is not going to assist that.
The noble Earl, Lord Clancarty, moved Amendment 210. Again, I hope I have set out the Government’s position on this. We appreciate what we have achieved by way of the joint report, and we go on to the detailed negotiations in the hope it will effectively mean that we can confirm in domestic law not only the rights of EU citizens in the United Kingdom, but the right of UK citizens in the EU.
The noble Lord, Lord Haskel, moved Amendment 211, which details a requirement to keep equivalence with the EU on rights and protections. Again, this is prospective. We are addressing it in the course of negotiations and we hope to achieve it in many respects. In my view and in the view of the Government, it would not be appropriate to bring this into our domestic law.
Finally, we have Amendments 49 and 52, which I hope I have gone some way to addressing so far. The Bill aims to provide a stable and certain domestic statute book on exit day. That is its point, irrespective of the result of the negotiations and of any final agreement with the EU. Of course, once we achieve a final agreement, we fully appreciate that we are going to have to draw it down into our domestic law. Parliament will have an opportunity to scrutinise it.
If, as I am sure we both do not want, the withdrawal agreement is not reached, what then happens to EU citizens’ rights? Do we not have the opportunity now to guarantee them, whatever the case?
With respect, if there were no agreement, then it would be for this sovereign Parliament to decide what it was going to do about that in domestic law. We have already made clear expressions of intent as regards their status. There is an issue here of time and place. While I understand the expressions of concern that we have heard from across the House, this is not the time and this Bill is not the place for these amendments. In these circumstances, I invite noble Lords to withdraw them.
I wonder if I could put one point to the noble and learned Lord before he sits down. As ever, what he said was intellectually lucid and stimulating. I just want to jog back to what he said about consensus and agreement. It is a very important distinction and I am sure it will be interesting to all his ministerial colleagues in the Foreign and Commonwealth Office and to diplomats around the world. How does this distinction translate into other languages? Does he think that our interlocutors in Brussels regard what we appeared to accept in December as a consensus or as an agreement? Does he think that they will now be quite relaxed if we walk away from some of what was a consensus because it was not an agreement? I should like to be a little clearer on this. It is going to be very important as we go through this debate when we are told that things are part of a consensus and not part of an agreement. If, with his usual intellectual authority, he could explain that to naive, one-time make-believe diplomats like me, I should be grateful.
I am most obliged to the noble Lord, if only for the compliment. As I sought to explain, we have the joint report and we have embraced it. We go on now to the next stage of negotiation. I used the term “consensus”, perhaps ill advisedly, to underline the point that we have not yet signed a binding agreement in international law—we have not yet achieved a treaty. We strive to achieve a treaty, and in striving to achieve that treaty we have in mind what we have already achieved in the joint report. But we acknowledge, as the EU itself has noted, that we have not yet placed that in the form of a treaty that is binding in international law. Until we do that, we do not draw it down into domestic law.
Does the noble and learned Lord envisage that Her Majesty’s Government might resile from any of the commitments they gave in the consensus they reached at the end of last year?
I do not even imagine that Her Majesty’s Government would wish to do anything of the sort.
My Lords, one of my comrades, if I may use that word in this place, commented that I was unduly brief in my introduction—or perhaps it was unusually brief; it was one or the other. That was because I stuck precisely to the terms of my amendment. The debate, however, has gone much wider than that. We have heard some powerful, passionate pleas on behalf of the rights of European Union citizens. We have heard them from colleagues on all sides of the House, and it is important to note that it is not just the opposition parties arguing this: support has come from the Cross Benches and from the Conservative Benches.
One of the ironies is that if European Union citizens has been given the right to vote in the referendum—they are taxpayers: “no taxation without representation”—as they were in the Scottish referendum, we would not now be going through this tortuous procedure. We would be getting on with running the country, looking after education, health, justice and all the things we should be doing as the sovereign Parliament.
My noble friend Lady Prosser put it very well: the reputation of the United Kingdom is at stake in all the matters that we are looking at today. The arguments put forward by my colleagues on behalf of all the amendments in the group were very powerful.
I thank the noble Lord for giving way. Could he add that European Union citizens will be allowed to vote in the forthcoming council elections in May?
Indeed, and as I understand it, if I read the Evening Standard right, they are going to send a very strong message as far as London is concerned about what they think of this Government.
I conclude by saying that I wish I was learned as well as noble, like the noble and learned Lord, Lord Keen, because I would then be able to understand some of the detail rather more precisely.
Before my noble friend concludes, does he share my concern about what the Minister said about the difference between “consensus” and “agreement”? Does he agree that that is quite a significant statement on the part of the Government in the course of this debate? The only point in making the distinction, as I understand it, is that the Government do not regard themselves as fully committed to the terms of the “agreement” of last December.
It is unusual for me to intervene, but I feel that if the noble Lord is going to make statements, he should make them accurately. If he is going to represent what a Minister has said, he should do so accurately. The distinction I drew was between an agreement that was now binding in international law and an agreement that was not now binding in international law. I hope the noble Lord’s recollection coincides with mine. If it does not, could he perhaps consult Hansard?
It is a very interesting point, and the noble Lord, Lord Patten, highlighted it in his intervention. I wish that while he was speaking I had been able to translate “consensus” and “agreement” into Spanish, French, German, Italian, Portuguese, Welsh and so on to see whether there is a coincidence between one and the other. No doubt that is something that we can return to.
The Minister finished by saying that there is a time and a place, and that this is not the right time and not the right place for these amendments. There will be many more times and this will be the right place, and I look forward to speaking to the rights of European—
Does the noble Lord agree that although on the legalities we have heard an extremely lucid explanation that in my view nobody could disagree with, delivered with all the noble and learned Lord’s customary charm, what we have not heard is any indication that anybody is aware of the reality in the outside world: that these people are choosing to go home? The people we need are going back because the Government are not giving them an assurance. These people believe that we agreed something in November. What we are seeing now in this intellectually fascinating legal debate is a total betrayal of their belief that we had agreed something. The pace at which people move away from this country—people who we need—will speed up if we do not get this right.
I am obliged to the noble Lord, Lord Kerr of Kinlochard, for pointing out that although the Minister has all the legality behind him, perhaps his argument is lacking in humanity. It is humanity that the European Union citizens deserve, not the legality that we have heard.
I was about to conclude by saying that this may not be the right time but it is certainly the right place. I look forward to returning to this, and I know that many noble Lords who have spoken do also, to argue and to fight for the rights of not just UK citizens on the continent, who matter as well, but the European Union citizens who have given so much to this country over the years and continue to do so.
It is worth pointing out that these citizens have existing rights by law in this country, and that will remain the case until these provisions are repealed, if and when they are.
The noble and learned Lord is a distinguished lawyer and had great distinction as the Lord Chancellor. Perhaps he can explain to the European Union citizens in Scotland, where he and I both live, why they were allowed to vote in the Scottish referendum but not in the European Union referendum. Many of them have asked me but I do not have the intellect or ability to answer them; perhaps the noble and learned Lord can.
That does not appear to be entirely relevant to the present debate and it is a bit late anyway. I had very little to do with the formulation of the franchise.
I think now it would be appropriate for me to beg leave to withdraw my amendment.
Amendment 49 withdrawn.
Amendment 50 not moved.
51: Clause 6, page 3, line 33, at end insert “subject to any agreement under subsection (6C)”
My Lords, I rather hope that the modest amendments in my name do not take the House two hours to deliberate over. They focus on a narrow set of issues relating to pending cases.
Amendment 62 would allow our domestic courts, subject to the terms of the withdrawal or transitional agreement, to refer cases to the CJEU after exit day if the course of action arose before exit day. Amendment 61 would require the Government to obtain from the CJEU and then publish a list of pending cases referred to domestic courts before exit day. Amendment 64 changes the definition of retained EU case law to include case law relating to pending cases referred to the CJEU before exit day.
These amendments were drawn from the Constitution Committee’s excellent report on the Bill and essentially aim to deal with two issues: first, pending cases in domestic courts that might have been referred to the CJEU and, secondly, pending cases already lodged with the CJEU before exit day. In the first instance I am really asking for the Government’s assurance that, in any withdrawal or transition agreement, they will seek to clarify whether domestic courts can continue to make reference to the CJEU in relation to cases that began before exit day. I can see that there has to be a cut-off point for references but it is the timing of that point which concerns me. What criteria will Ministers apply and how will these be written into the agreement in such a way as to guarantee, and not undermine, procedural fairness and access to justice?
It may seem that this is a small or insignificant matter but, given the wide range of issues that the court considers, I think not. After all, it looks at everything from trademarks to intellectual property rights, workplace rights and even the distribution of EU funds. Given that cases started before the Prime Minister triggered Article 50 are likely to be treated differently from those which followed it, it is surely important that principles of fairness and consistency enter into any agreement which the Government can sign.
The second type of pending cases, dealt with in Amendment 64, will be those that are already with the CJEU. In another place, the Solicitor-General argued that these cases would simply continue. That is fine as far as it goes but, as the Constitution Committee pointed out, the Government intend to provide for these pending cases to be covered in the withdrawal agreement and implementation Bill. But what happens to those cases if there is no deal? Would it not make sense to have a saving provision in the Bill saying simply that any case that is with the CJEU is determined to be treated as contributing to pre-exit case law, and in turn forms part of retained EU case law?
The Constitution Committee’s proposal that the Government should produce a list of cases on exit day that would be treated in this way made very good sense. To my way of thinking, that is a logical way of handling quite a complex set of legal issues, which are obviously well beyond my sort of competence as a non-lawyer. However, I hope that the Minister can satisfy my curiosity and set out how the Government intend to proceed. I also hope that he can satisfy the Constitution Committee, which I thought had a rather neat solution to the problem. Pending cases are of great value and will be of great interest to colleagues. I am hopeful that the Government can satisfy my simple concerns and provide us with an explanation that works. I fear that we will otherwise end up with something of a case law muddle. I beg to move.
My noble friend is absolutely right that this is not a small or insignificant matter. It is an important one with rule-of-law implications. The starting point, as he explained, is his proposed Amendment 62 which, if agreed, would add a new paragraph (6C), the purpose of which would be to encourage the negotiation of an agreement that cases can continue to be referred to the CJEU by our own courts after exit day. That would relate to new cases where the cause of action arose prior to exit day. This is logical because the important point is about whether the full remedies currently available to litigants, potential litigants and, importantly, our courts remain until we leave, while the law of the EU remains in place.
Of course, being able to refer such cases depends on an agreement, the very agreement that my noble friend’s amendment would make it an objective to negotiate. We will not be able to refer cases to the court in Luxembourg after exit day, except by agreement with the EU in such an agreement. But he is also right that there is a risk— although we hope very much that it will not happen—that if we end up without a withdrawal agreement, there would need to be legislation enabling this to continue to take place. So the principle of the amendments seems entirely right, and he is right to say that this was dealt with by the Constitution Committee at paragraphs 150 and 153 of its excellent report.
Perhaps I may refer to what the committee said in paragraph 153, having made the point that my noble friend has identified:
“We recommend that, irrespective of any implementation bill, pending cases are dealt with in the European Union (Withdrawal) Bill. We further recommend that rulings on cases that have been referred to the CJEU before exit day are treated as pre-exit case law—such that they form part of ‘retained EU case law’—and that the Government publishes, on exit day, a list of all such cases”.
The middle part of that, on what the significance is of,
“rulings on cases that have been referred … before exit day”,
is dealt with in a later amendment. But, as he has said, the requirement that the Government should publish a list of all such cases is dealt with in these amendments. He is right to say that the Solicitor-General in another place referred to the importance of knowing, at least as I read his remarks, what those cases are.
It seems that there has to be a justification, although I can see none, for depriving litigants and our courts of the ability to refer cases to the CJEU. It is important that noble Lords are clear on the fact that that does not mean sending cases to the CJEU for it to decide; it is for that court to determine questions of interpretation, as the treaty currently provides, although the interpretation given may in fact then decide the case. Our own courts would then take the interpretation provided by the European court and apply it to the case before them.
I look forward to hearing what the noble Baroness or the noble and learned Lord, depending on who will respond to the debate—forgive me, of course it is the noble Baroness the Minister—will say to my noble friend.
My Lords, this may have been a short debate but it concerns a significant issue, and I am grateful to the noble Lord, Lord Bassam, and the noble and learned Lord, Lord Goldsmith, for their contributions. I am aware that a key issue of interest in this Committee is how pending cases before the European courts will be resolved, and I hope that I can respond relatively briefly to these amendments in the name of the noble Lord, Lord Bassam.
As was acknowledged in their contributions, the Government have been clear regarding their approach to cases which have been referred to the European courts before exit day and we have made good progress in achieving this outcome in our negotiations with the EU. As such, I applaud the similar concern expressed by the noble Lord that there should be legal certainty in this area. However, as I have said previously, and indeed as my ministerial colleagues have also said, the purpose of this Bill is to provide a functioning statute book on the day we leave the EU, irrespective of the result of the negotiations on any final agreement with the EU.
The Government have been clear throughout the passage of the Bill through this House and the other place that it is not intended in any way to prejudge the negotiations or to predict an agreement between the UK and the EU on their future relationship. For that reason, I would submit that the Bill is not a suitable vehicle for such amendments to take effect. Future legislation will be needed to implement the withdrawal agreement, including the treatment of cases that are pending before the European Court of Justice. That legislation will need to be informed by the precise terms of the agreement. The Government have already committed to introducing a withdrawal agreement and an implementation Bill, but let me try to clarify a couple of the specific points raised.
I think it was the noble and learned Lord, Lord Goldsmith, who in effect asked about the status of a case that has been referred to the European court before exit, but does not proceed to a judgment until after then. The intention is that a case which starts and has been referred to that court before exit would proceed to a judgment, which our courts would be bound by. That is the intention but—let me make this clear—this is pending an agreement with the EU about these issues. In relation to the request of the noble Lord, Lord Bassam, for a list my understanding is that, at the moment, cases registered at the Court of Justice of the European Union are made available online, so after our withdrawal we will have certainty as to how many pending UK cases have been referred to the court.
I apologise to the noble Lord and the noble and learned Lord if I have not specifically addressed some of their concerns. The difficulty, as was made clear in December, is that there is a clear statement of intention made in good faith by the Government, surrounding heads of agreement that have been achieved between the United Kingdom and the EU. But we need to continue with our negotiations to fine tune that, and hopefully then reduce it all to the final agreement. But I cannot pre-empt what may be in the final agreement and I hope that, in these circumstances, the noble Lord, Lord Bassam, will feel able to withdraw his amendment.
I apologise for not having properly identified the noble Baroness, Lady Goldie, as the Minister responding to this debate. I wonder whether she will allow me to just press one question. She has very helpfully identified the position in relation to pending cases that have started but for which rulings have not been given at the date of exit. These amendments include an additional category of cases, as I understand it, such as cases where the cause of action has arisen prior to exit: for example, where EU law is in place and there is an issue of EU law that a litigant wants to raise but they have not actually started the case at the moment we leave; or where the case has started but a reference has not been made at that stage, because the court does not make a reference until it comes to a particular point in the proceedings. In line with her helpful answer in relation to the category of cases that are pending in the CJEU at the date of exit, does she think the same principle ought to apply, subject to agreement, to cases where the cause of action has arisen before exit or the case has started but not got any further than that? Could she help on that point?
I thank the noble and learned Lord for his point, but I am afraid my response is going to be slightly less encouraging for him. The position of the Government is that we do not agree that new cases should be initiated post exit, even when these refer to pre-exit causes of action, because it would lead to an uncertain environment. It would be impossible to predict for how long the European Court of Justice would continue to issue judgments in respect of the UK. That, in the opinion of the Government, would strike at the underlying purpose of this Bill, which is to try to achieve a snapshot—to use that phrase again—as at the date of exit.
I am grateful to the Minister for her response. She partly satisfied my concern, but not wholly. I do not really think it is satisfactory that the cases that will be floating around in the ether will be left with the degree of uncertainty that she has suggested may be the case. The fact that the legislation that is going to cover this point will be left until the final Bill—the transition and withdrawal Bill or whatever it is finally called—does not satisfy me greatly. I think that will leave uncertainty for litigants in cases that could be incredibly complicated. I am rather worried that this issue is going to get caught up in the Government’s general dislike for the CJEU. My recollection is that this is one of Theresa May’s red lines: she does not like the CJEU and therefore part of taking back control is getting rid of it. We have got news for the Minister dealing with this: it is going to take the UK some time to extract itself from CJEU processes. The quicker the Government wake up to that fact, the easier it will be for us all to deal with it. In becoming more realistic in their approach to the court, the Government will give some greater certainty as to how we intend to proceed in future.
While I am happy to withdraw my amendment for the moment, I may come back to this at a later stage, because our legal system and litigants require greater certainty. This is not necessarily the small issue I dreamed it might be when I came across it in the Constitution Committee’s excellent report. I am grateful for the debate we have had, but I am not so grateful for the answer. We will probably require a bit more from the Minister at a later stage. I beg leave to withdraw my amendment.
Amendment 51 withdrawn.
Amendments 52 to 54 not moved.
55: Clause 6, page 3, line 34, leave out subsection (2) and insert—
“(2) A court or tribunal may regard the decisions of the European Court made on or after exit day to be persuasive.”
My Lords, the two amendments in this group address the important question of the weight, if any, to be given to the judgments of the Court of Justice of the European Union which are delivered after exit day. Amendment 55 is in the names of the noble Lords, Lord Foulkes of Cumnock and Lord Adonis. Amendment 56 is in my name and those of the noble and learned Lords, Lord Goldsmith and Lord Wallace of Tankerness, and the noble Viscount, Lord Hailsham.
Amendment 56 would implement the recommendation of your Lordships’ Constitution Committee at paragraph 142 of our report on the Bill. After exit day, there is no dispute that our courts will make their own judgments on retained EU law. They will not be bound by judgments given by the court of justice after exit day. While judgments given before exit day will bind our courts up to the level of the Supreme Court, those given after exit day will not be binding. But our judges will wish to look at the judgments of the court of justice in Luxembourg delivered after exit day. That is not just because our judges are always interested, and rightly so, in seeing how courts in other jurisdictions address the same or similar issues. The connection here is much stronger. The retained EU law, which our courts will be interpreting, owes its origins to the institutions of the EU and there may be very good reasons for our courts looking carefully at how the court of justice has interpreted after exit day the same or a similar provision.
There are three problems with Clause 6(2) as currently drafted. First, it begins in a negative way by stating that a domestic court “need not have regard” to judgments delivered by the court of justice after exit day. That default position is unhelpful because it may be understood to suggest that our judges should not normally have any regard to post-exit day judgments of the court of justice.
Secondly, the end of Clause 6(2) allows the courts here to have regard to post-exit day judgments of the European court only if our courts consider it “appropriate to do so”. But judges do not look at foreign judgments because it is appropriate to do so; they look abroad for assistance because the foreign judgment is relevant to the issue that they are deciding. The terminology matters here. The use of “appropriate” wrongly suggests that our court will be making a policy choice to have regard to a post-exit day judgment from Luxembourg. Senior members of the judiciary have understandably expressed concern that if Clause 6(2) is left in its current form, the courts will inevitably be criticised for making a policy choice in this context.
I should make it clear that of course I do not speak for the judiciary, but I do speak to them. I can tell the Committee that many senior judges are very concerned about the content of Clause 6(2). Paragraphs 134 and 135 of the report of your Lordships’ Constitution Committee record the evidence that was given by the noble and learned Baroness, Lady Hale, the President of the Supreme Court, and her predecessor, the noble and learned Lord, Lord Neuberger of Abbotsbury, who I am pleased to see in his place today. The concern of the senior judiciary is not that judges should be shielded from criticism or that they are not tough enough to withstand it. The point is that confidence in the rule of law is undermined if judges are seen to be taking sensitive policy decisions that are for Parliament to make. Clause 6 therefore needs to make it much clearer that although our judges are certainly not going to be bound by Luxembourg judgments handed down after exit day, Parliament does intend our judges to have regard to judgments of that court given after exit day where they consider that those judgments are relevant to the issues before our courts.
The third defect of Clause 6(2) as currently drafted is that it suggests that the same principles apply to decisions of “another EU entity or the EU” itself. I am doubtful that there is any need to mention other EU entities or the EU itself, or certainly to compare them with the European Court itself.
Amendment 56 seeks to address the issues in a manner which gives much clearer guidance to our courts. It would make it clear that our judges must have regard to a post-exit day judgment of the European court if the domestic court considers it relevant to do so. It would also add that in deciding the significance of any such post-exit day European court judgment, the domestic court should have regard to the terms of any agreement that is reached between the UK and the EU which it considers to be relevant. The terms of the withdrawal agreement, if and when approved by Parliament, will identify the relationship between the UK and the EU post exit day, and that will give considerable guidance to the courts.
I emphasise, however, that at all times under Amendment 56 and indeed under Amendment 55, it will be for the domestic court to decide on the significance, if any, of the Luxembourg judgment. There is no dispute over the fact that our judges will remain in charge in relation to post-exit day judgments. However, Amendment 56 would provide the guidance that they are seeking and which, I suggest, they are entitled to expect. I beg to move.
My Lords, there is little to add to the excellent introduction made to these amendments by the noble Lord, Lord Pannick, except to say that decisions of the other courts which currently have persuasive authority include those of the Judicial Committee of the Privy Council, decisions of higher-level foreign courts, especially in the Commonwealth and other similar jurisdictions, and one that I have a particular interest in, being a member of the Parliamentary Assembly of the Council of Europe; namely, decisions of the European Court of Human Rights, which under the Human Rights Act 1998 must be taken into account by UK courts. It is right that the European Court of Justice should have a similar role and persuasive powers.
My Lords, Clause 6 is concerned with the issue of how the large body of retained EU law is to be interpreted by judges. It is an important issue because it is a fundamental principle that the law should be clear and consistent, but also because the topic could lead to ill-informed political and media attacks on the judges, to which the noble Lord, Lord Pannick, has referred, which would undermine the rule of law at home, the reputation of English law abroad and the consequential attraction of London as a global dispute resolution centre. Your Lordships will no doubt recall one such Brexit-related attack on the judiciary that received worldwide publicity. Clause 6 should be worded with a view to clarifying the law and minimising the risk of such attacks. Quite apart from that, I suggest that we need to think through the implications for the UK legal system and its attraction to others when it comes to developing our own system of retained EU law. I cannot pretend that this issue is easy to resolve but it is an appropriate opportunity to explain the context from a judicial perspective.
At the moment, at any rate, the Government envisage that post-Brexit the UK courts will, at least in general, no longer be subject to the jurisdiction of the ECJ and so will be free to interpret EU law as they see fit. This gives rise to two closely related problems. The first is: what principles of interpretation are to be applied to that retained EU law? Secondly, what use can be made of ECJ case law when carrying out that interpretation exercise?
On the first problem, unlike normal UK legislation, which is generally tightly drawn, EU legislation is relatively loosely drafted, leaving the judges to resolve ambiguities and fill gaps. Some EU legislation is of course drafted on the basis that it will be interpreted to give effect to fundamental EU aims, such as ever closer union and the strengthening of the internal market, which may well be no longer relevant to the UK after Brexit. In providing that general principles of interpretation set out in pre-Brexit ECJ decisions will be applied by UK judges after Brexit, Clause 6(3) in its present form none the less has the effect of maintaining all those interpretive principles, although by virtue of Clause 6(5) it would be open to the Supreme Court to depart from such decisions.
The second, related problem is the use of ECJ case law. In her speech last week, the Prime Minister said that,
“where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts”,
and added that,
“if, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently”.
That sounds fine but things are not quite so straightforward. The Bill sensibly provides that the UK courts must follow the pre-Brexit decisions of the ECJ although, as I have said, Clause 6(4) states that the Supreme Court can depart from those decisions in the same circumstances as it can depart from its own decisions. By contrast, where there is a post-Brexit ECJ decision, as the noble Lord, Lord Pannick, has explained, Clause 6(2) provides that a court,
“need not have regard to”,
such a decision,
“but may do so if it considers it appropriate”.
That gives precious little guidance to a judge—indeed, as I will mention later, possibly unhelpful guidance from the point of view of the judiciary’s reputation—as to how to approach post-Brexit ECJ decisions.
It has been suggested that a judge could be assisted by the approach that courts have taken when looking for guidance from decisions of courts in other jurisdictions. However, courts in this country normally do this when looking for general principles or when considering the scope of human rights conventions. That is not really a sound analogy because Clause 6(2) would normally apply to a case where a judge was looking at an ECJ decision on the interpretation of specific legislation. It has also been suggested that a judge could get help from cases that have stressed the desirability of UK courts taking account of decisions of overseas courts so as to reach a uniform interpretation, but that does not provide a real analogy either because EU law is unlike those conventions: it is a law of a union from which the UK will have departed because it does not want to have such uniformity, although accepting that it may be desirable in some cases.
As the noble Lord, Lord Pannick, has said, Clause 6(2) in its present form appears to indicate that there is a presumption against following decisions of the ECJ but that judges can follow such judgments in this country if they think it appropriate. That would suggest, as again he says, that judges would be expected to make decisions that were essentially political—in particular, whether to align the UK with an ECJ interpretation against the statutory presumption for policy-type reasons, or to depart from the ECJ interpretation.
Given that pre-Brexit decisions of the ECJ are, sensibly, to be determinative on questions of interpretation, both consistency of approach and the experience of the ECJ as interpreters of EU law support the notion that post-Brexit ECJ decisions should be given the same effect, at least where the retained legislation has not been changed. However, if this is not to be the policy, rather than leaving any new policy to be worked out by the courts, which is the effect of Clause 6(2), there is obvious force in the notion that Parliament should clearly state what the new policy is. Similarly, Clause 6(4) is questionable in providing that the Supreme Court should decide whether to adhere to pre-Brexit ECJ decisions or whether new principles of interpretation should apply, because principles to sustain ever closer union or single market freedoms are no longer relevant interpretative considerations in the UK.
There are various possible solutions that need careful consideration, given that this issue is so important, and I shall present some examples. First, the interpretative approach should follow a policy decision set out either in the amendments to be made to EU legislation under powers granted in the Bill or in the final agreement reached between the UK and the EU, and given formal parliamentary approval. In relation to issues not covered by such arrangements, it could be provided that retained EU law was to be interpreted without any departure from existing principles of interpretation. If that were not an acceptable solution, the courts could be given more specific assistance as to how to interpret legislation, in particular whether or not to continue alignment.
Secondly, as some amendments before your Lordships’ House today indicate, including those that were moved just now, post-Brexit decisions of the ECJ could be regarded as persuasive or it could be provided that UK courts must have regard to them if relevant, and that in determining relevance the court should have regard to any relevant agreement between the EU and the UK. Such formulations would probably be better than the present Clause 6(2) but they do not address all the perceived problems.
Thirdly, Clause 6(2) could be omitted altogether. At the moment, it seems to me that, with respect, the present clause is worse than nothing from the judicial perspective. First, it creates the presumption to which the noble Lord, Lord Pannick, has referred, and secondly it uses the word “appropriate”, which suggests a policy role for the judges. That would leave them more exposed in both what they do and what they may be perceived to be doing.
Fourthly, more specific interpretative guidance could be given, bearing in mind the particular circumstances of Brexit and the particular way in which EU legislation is crafted, so that decisions on differing political issues are not left to the judges. The argument that telling judges how to interpret the law could be a precedent for ordinary parliamentary legislation can arguably at least be met by the point that this is a unique circumstance. It would also have the advantage of providing clarity for the UK’s relationship, including its trading relationship, with the other states of Europe and elsewhere.
I hope these issues and the choices they reflect will be subject to proper scrutiny and discussion. The right solution will not only protect the independence of the judiciary but will demonstrate that decisions of a political nature should not be left to judges, and it will help to achieve the legal clarity that is so important to the rule of law and to the future of this country’s trading and other relationships with the EU and other states.
As I hope I have indicated, I accept that there are no perfect answers. That is unsurprising. The incorporation of pre-Brexit—but only pre-Brexit—EU law into UK law requires a sort of multidimensional Procrustean solution. In so far as the Bill requires the judges to perform the role of Procrustes, Parliament should do all that it can to ensure that the judges do not suffer the fate of Procrustes.
The noble and learned Lord has made a number of strong statements to the Committee about the impact, as he regards it, of Clause 6(2) on judicial independence and the reputation of the judiciary. In particular he objects, as did the noble Lord, Lord Pannick, to giving the courts the discretion to reach a judgment on whether it is appropriate to have regard to the European court. Proposed subsection (2B) in Amendment 56 in the name of the noble Lord, Lord Pannick, states:
“In determining the significance of any judgment … the court or tribunal must have regard to the terms of any agreement between the United Kingdom and the EU which it considers relevant”.
To a layman, this clearly involves an exercise of judicial discretion. So why is the judicial discretion in subsection (2B) set out in Amendment 56 potentially any less damaging and likely to be conducive to controversy than the existing Clause 6(2)?
I suspect that the noble Lord, Lord Pannick, whose amendment it is, is better placed to answer. My answer would be twofold. First, it specifically tells the judge what to have regard to; it does not leave it completely open. Secondly, it uses a rather more familiar expression, “relevant”. A judge will be able to say, “When construing this, I have looked at the document”—namely, the agreement referred to in subsection (2B)—“to which I am required to have regard. In my view, it tells me to do this or that”. It is specific guidance, albeit indirect specific guidance, through the agreement referred to in subsection (2B), whereas the term “appropriate” leaves it completely open for the judge to decide whether it is appropriate, if I may use that word, to consider matters that he or she is not specifically told to take into account. The judge has to make the decision, “Do I think about x; do I take that into account”? Here, the judge knows what he or she has to take into account because it is spelled out; namely, the agreement.
My Lords, I hesitate to follow the very careful analysis of the noble and learned Lord, Lord Neuberger, but perhaps I can add a few words. We are all trying to find the best way of expressing in clear and simple language, in statutory form, the guidance that the courts and tribunals will need about the interpretation of retained EU law. In particular, Clause 3 is about direct EU legislation which we will be receiving in the language of the directives and regulations to which this clause refers.
The position is fairly clear about judgments or decisions of the CJEU before exit day. That is retained EU case law which is referred to in Clause 6(3) and we are not in any difficulty on that, rather, it is what to do about the future. Had it not been for the concerns expressed by the noble and learned Baroness, Lady Hale, and the noble and learned Lord, Lord Neuberger, about the risk of being criticised for being drawn into areas of policy, I would have been content to see Clause 6(2) deleted and to rely simply on the normal, traditional way in which comparative law is applied by courts up and down the country. I have been doing this ever since I started sitting as a judge. Of course, there are examples outside the particular area we are dealing with here of conventions to which we are a party and which need to be interpreted. One looks at other jurisdictions to see how the language of a convention is interpreted and applied. This is a normal part of our jurisprudence and it would have been enough. However, I recognise the force of the points made in their evidence to the Constitution Committee and today by the noble and learned Lord, Lord Neuberger and I think that we have to do something to give the guidance for which they are looking.
One should also bear in mind also that it will be some time before the Supreme Court handles cases of this kind. We are talking about tribunals as well as courts at every level. I am sure that when the Supreme Court gets hold of the thing, it will be astute enough to give the kind of guidance that one normally gets from the higher courts, but we have to look at the beginning of the process.
On the table at the moment we have Clause 6(2) as it stands and Amendment 56 from the noble Lord, Lord Pannick. I hope that the noble Lord will forgive me when I say that I think his amendment is like the curate’s egg. There are bits of it which I rather like and bits which I would prefer to drop, and the same goes for Clause 6(2). I suggest an amalgamation of the best bits of the amendment in the name of the noble Lord, Lord Pannick, and the best bits of Clause 6(2).
Not at all. It is curing the curate’s egg and producing an acceptable piece of guidance which has the best bits of both, which is what we need to look for. I am not cherry-picking; I am analysing.
Having your cake and eating it.
No, this is analysis. Let me explain what I would like to do.
I quite like the words of Clause 6(2) as it stands:
“A court or tribunal need not have regard to”,
a judgment or decision given by the European Court on or after the exit day because that fits very well with the way we are looking at the position before exit day. It is certainly true that it is a negative way of putting it, but I regard it as a helpful transition to the new situation. However, I do not like the remainder of Clause 6(2) for the very reasons that the noble Lord, Lord Pannick, explained. That is where I would like to bring in the passages from the latter part of his formula, which are that a court or tribunal may have regard to such judgments or decisions where it considers them relevant for the proper interpretation of retained EU law.
I would take out “appropriate” from Clause 6(2), for reasons that have been referred to already, and would leave out the early part of proposed new subsection (2A) in Amendment 56 where “must” is used. I would prefer “may” to “must”, leaving it to the court to make its own decision regarding whether the matter is relevant.
Would Amendment 55 tabled in my name and that of my noble friend Lord Adonis not deal with the noble and learned Lord’s points?
I am very grateful to the noble Lord and I apologise for not having paid due regard to that formula because the wording is exactly what I am looking for, but I am trying to fit it into the opening words of Clause 6(2). However, it is certainly right; I respectfully suggest that “may” is the right word to use. It is better to add in the bit about,
“where it considers it relevant”,
which is what comes from the noble Lord, Lord Pannick. So one is putting together bits and pieces of thought from various attempts to produce a formula.
Perhaps I may read out again for Hansard’s benefit how I suggest the provision might run: “A court or tribunal need not have regard to a judgment or decision given by the European Court on or after exit day, but it may have regard to it where it considers this relevant for the proper interpretation of retained EU law”. If “may” is used—although the noble Lord, Lord Pannick, will correct me—proposed new subsection (2C) in Amendment 56 will no longer be relevant. I say nothing about subsection (2B) which may have force and value if the court requires guidance as to what to do with the agreement between the United Kingdom and the EU.
I hope that that contribution will give the Minister something else to think about. I think that we all hope that on Report he may be able to come back with a formula which we can all endorse.
My Lords, perhaps I may add a few words, simply because of the devoted affection in the Bill for the word “appropriate”. It is larded through the document. Its inappropriateness in this particular context needs to be underlined—I shall come back to it at a later stage under different clauses. It is terribly simple: if something is relevant to a court’s decision, it is likely to be appropriate that the court should look at it. If something is irrelevant to the court’s decision, it cannot possibly be appropriate for the court to look at it. So the term “appropriate” should go.
My Lords, I rather agree that “appropriate” is not particularly desirable. I wonder whether putting “helpful” in Clause 6(2) would more accurately reflect the way that courts generally consider law from other jurisdictions in developing the law—one always invites courts if they find a particular decision to be helpful—whereas I understand that “appropriate” is considered perhaps to have too much of a political charge. However, I do not wholly understand why the noble Lord, Lord Pannick, finds the initial words of Clause 6(2) rather offensive, where it says:
“A court or tribunal need not have regard”.
All that is saying is that they are not obliged to have regard—I do not think it says any more. I personally read no particular charge in it, and I think that the noble and learned Lord, Lord Hope, would agree.
There is something of an irony about these amendments, in that the only way to have real certainty would be to tell the court either to disregard it or to follow it. In a sense, we are dealing with an imperfect situation. We are trying, as the noble and learned Lord, Lord Neuberger, said, to craft something which helps judges by reducing any political element in their decision-making but which—I am sorry to use a political expression—allows our courts to take back control. In order to take back control, I am happy that they should have a great deal of freedom to do so without in any sense involving them in a political decision.
Amendment 56 from the noble Lord, Lord Pannick, and others is of course much longer than the original wording, with three subsections as opposed to one. Respectfully, I say that using words such as “relevant” is only quite helpful, because in any event a court will ignore matters that are irrelevant. I feel similarly about the word “significance”: a court will itself have to decide significance. That of course may offend the political element but, if something is insignificant, the court will disregard it in any event. Although I understand what lies behind this amendment, I am not sure that it really does the trick.
It is not just out of nominative loyalty that I turn to the amendment of the noble Lord, Lord Foulkes, but because he may be on to something. I agree with the use of “may”, which was endorsed by the noble and learned Lord, Lord Hope. I am not quite so sure about “persuasive”, but I will listen to what the noble and learned Lord says. However, I like the succinct nature of the amendment and it seems to me to allow our courts the freedom that we have, as it were, granted them by the decision that the country has made in the referendum, but nevertheless not to compromise them.
Does the noble Lord have any reaction to the point made by the noble Lord, Lord Pannick, about the reference to,
“another EU entity or the EU”,
in Clause 6(2) as it stands? Section 3(1) of the European Communities Act 1972 does not mention these and refers only to the European Court of Justice, so it may be that there is no need to refer to these entities and we can confine it to the European Court of Justice.
I take that point from the noble and learned Lord. I wait to hear from the Minister why he considers that it needs to be included; at the moment, I am none the wiser.
My Lords, my noble friend Lord Foulkes and I are basking in the judicial praise we have received this afternoon for Amendment 55. We put our pen to paper on it with no legal training whatever. Perhaps we should offer advice, which no doubt will be very expensively provided after this Bill becomes law, because we are able to cut through the issues with such great clarity. I note also that Amendment 55 is by far the shorter of those we are currently debating, so clearly we were able to summarise these matters succinctly.
I have listened to the debate and I am still none the wiser about the real difference, in plain English, between “relevant” and “appropriate”. I simply cannot understand it. I was astonished at the vehemence of the statement from the noble and learned Lord, Lord Neuberger, about the impact that this would have on the judiciary where a court is expected to decide that something is relevant rather than appropriate. It seems to me that in plain English these words have precisely the same meaning. They both require a court to exercise discretion and, to me, they look to require it to exercise precisely the same discretion. Unless the noble Lord, Lord Pannick, can lay out for us some compelling arguments, as he always does with such lucidity, it looks as if it does not matter one way or the other what we do here. It is a straightforward matter of whether or not courts are prepared to be robust in reaching their decisions.
There is no doubt that there has to be judicial discretion, the question is the extent to which guidance is given to the court. To suggest to the court that it should exercise its discretion by reference to whether something is appropriate suggests, does it not, that it is to make a policy decision? The question is whether something is relevant, meaning legally relevant by reference to the particular issue that arises before the court in its legal context.
The word “relevant” does not, in any normal meaning of the word, mean legally relevant, any more than the word “appropriate” means legally inappropriate.
My Lords, can I make a confession before we go further? I cannot claim credit for the wording of this amendment. The credit must go to Michael Clancy of the Law Society of Scotland—that is why it is better than I would have done. The Law Society of Scotland says that,
“‘persuasive authority’ is a recognised aspect of the doctrine of stare decisis or precedent. Persuasive decisions are not technically binding but the courts can pay special attention to them”.
I mentioned the three courts earlier: the Judicial Committee of the Privy Council, the Court of Human Rights and the supreme courts of Commonwealth countries. It seems to me to be a very good amendment, but I do not want to take credit for it, as that must go to someone else.
My Lords, if the noble Lord, Lord Adonis, is wondering why the word “appropriate” does not fit into the context of trying to limit judicial discretion, he should look at how many times it is used in this and other Bills to give Ministers the opportunity to decide one way or the other, in what are quite clearly different kinds of decisions from those you would expect judges to make.
My Lords, with respect to the noble Lord, Lord Adonis, what the noble Lord, Lord Pannick said in reply is in my experience absolutely right. To a judge, the word “relevant” requires him to look at the issues that need to be decided. It is a much tighter word than “appropriate”, and is used frequently. In case law, one searches for the point that is directly relevant to the point at issue. It may be that legal terminology is best adopted because that is what judges understand. It is a different kind of word from “appropriate”, which judges do not normally use. Therefore, I suggest it is a better word to use in this context.
My Lords, given the time, it may be relevant, appropriate or even helpful to try to wind up this particular debate, although not in such a way that undermines the very real importance of the amendment.
I want to underline two aspects. The first aspect is legal certainty, which was referred to by the noble and learned Lord, Lord Neuberger, and the noble Lord, Lord Pannick. It is very important, for example, that in considering cases where retained EU law is in question, people and businesses are able to recognise that if there are decisions of the Court of Justice of the European Union that are relevant, then it is likely—though not an obligation—that the courts will take them into account. They can order their affairs on that basis, and that is a critical part of legal certainty. It seems right, therefore, that this amendment, to which I have added my name, gives direction or guidance that where such decisions are relevant to the interpretation of retained EU law they should be paid regard.
The second principle is the independence of our judiciary. It is right in this context to refer to the shocking instance of the attack on our judiciary that took place at the time of the Article 50 decision. It was shocking not just that our judiciary was referred to in such terms by a popular newspaper but that it was not immediately defended and the accusation rejected by the Government, including Ministers whose job it was to do so. In dealing with this particular amendment we have to be alive to the risk that if after exit day a judge chooses—because he or she believes it right or relevant to do so; whatever word you want to use—to make reference to a decision of the Court of Justice of the European Union, that judge is not then subjected to a barrage of criticism and the accusation, “How dare you take refuge in decisions of this hated institution, one which we have left, in making decisions on this law”. It is important that we should look at this carefully and make sure that judges are protected.
In those circumstances, the amendment does two important things. First, if the Bill is passed in this way, it gives Parliament direction to say to judges that if something is relevant—which is an objective fact, though it requires appreciation; it is not a matter of subjective discretion as to whether it is relevant—they should take it into account. No one could then criticise a judge later by saying, “Why did you take into account that European decision? You should not have done so”.
Secondly, it makes clear to judges that if they do not regard the decision to be relevant, it is then open to them—indeed, it may be their duty to do so—not to have regard to that decision. That is why proposed new paragraph (2C) in the amendment tabled by the noble Lord, Lord Pannick, and others makes it clear that a court may determine that any judgment or decision taken into account has no significance in relation to its proceedings. That, in the language of Brexit, is giving control back to the courts; taking it back and not leaving it to someone else. That is very important.
Perhaps I may underline that the House should take great heed of the advice given by the noble and learned Lords who have spoken, in particular the noble and learned Lord, Lord Neuberger of Abbotsbury, in his position as a former President of the Supreme Court, and that of the noble and learned Lord, Lord Hope of Craighead. I am not sure that at the moment I agree with him completely about the right wording, but on the importance of the principle I did not understand there to be any difference between what he said and what others, including the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Neuberger, have said.
I hope that the noble and learned Lord who is to respond—if I have correctly identified who is to speak this time—will be able to say that the Government accept that it is right to make amendments in this way. Whether he is able to accept quite what the formulation would be is another matter, but he may wish to consider, between now and Report, whether discussions should take place to arrive at a formulation that those in the House who are concerned about this issue find to be a happy and helpful way of setting it out. That is for him to say. I would suggest that that would be most helpful, but in the meantime, I hope that on this occasion he will be able to say that in the light of what has been said about the importance of the principles of legal certainty and doing everything we can to uphold the independence of our judges, upon which principle we all depend, the Government accept it and will do something to make it right.
Does my noble and learned friend agree that, in all fairness, the noble and learned Lord, Lord Keen, distinctly and clearly criticised those attacking the judiciary at the time that my noble and learned friend mentioned?
I am grateful for that unexpected intervention from my own Front Bench, but I am happy to take the opportunity to say that the noble and learned Lord, Lord Keen, was one of the few to say the right thing and uphold the independence of the judiciary at the time of that attack. I am grateful to my noble friend Lord Beecham for making the point because it deserves to be made.
My Lords, I, too, am grateful to the noble Lord, Lord Beecham, for making that point. I would add only that I spoke as a Minister of this Government in expressing that view, because I spoke from the Dispatch Box when I made it clear. I can refer the noble and learned Lord, Lord Goldsmith, to Hansard in regard to that point. Of course, the origins of the remark may not have had quite the impact that it could otherwise have had if coming from another source—I do not seek to elaborate on that point.
Sometimes it comes ill to counsel to listen rather than to speak, but this is an occasion when it is entirely appropriate for me and for the Government to listen to what has been said. I am extremely grateful for the contributions of all noble Lords and noble and learned Lords with regard to the formulation of Clause 6(2). I refer to the formulation of the clause because I believe we have a common desire to ensure that we give appropriate, effective and clear guidance, in so far as it is required, to the judiciary regarding what is a relatively complex issue. Of course the noble and learned Lord, Lord Hope, pointed out that in the normal way one might delete Clause 6(2) and allow the courts to deal with this as they deal with other matters of comparative law, but he went on to point out—quite correctly, I submit—that here we are dealing with a very particular situation where guidance may be needed. I am conscious of the way in which the various amendments have evolved.
The noble and learned Lord, Lord Neuberger, also referred to Clause 6(4) and the issue of whether and when the Supreme Court might decide whether to adhere to precedents in this context. I bow to the far greater experience of the noble and learned Lords, Lord Neuberger and Lord Hope, who sat in the UK Supreme Court. My limited experience is that, where I attempted to persuade them to adhere or not to adhere to a particular precedent, they had no difficulty in making their own minds up.
Be that as it may, I recognise the force of the points that have been made. They have come from beyond this House as well because, as noble Lords will be aware, the Constitution Committee also made some recommendations about this. Indeed, its early recommendation in March 2017 was,
“the Government may wish to consider whether the Bill should provide that, as a general rule, UK courts ‘may have regard to’ the case law of the Court of Justice (and we stress that it should be optional)”.
Indeed, we were having regard to that as we looked at Clause 6(2).
A point was made about the distinction between “may” and “must” in the amendment of the noble Lord, Lord Pannick. It occurs to me that, where he uses “must”, he goes on in his amendment at (2C) to qualify the context in which that word is used, and there may not be a vast gulf between “may” and “must” in the context of the two amendments that have been tabled. Of course, that which was recommended by the Law Society of Scotland has the merit of some simplicity and embraces the same point.
At this stage I would add only that the Bingham Centre looked at the current recommendations of the Constitution Committee that lie behind the amendment in the name of the noble Lord, Lord Pannick, and raised concerns about a number of aspects of the formulation put forward by the committee. However, I make it clear that we greatly appreciate the contributions that have been made to this part of the Committee’s debate. We will go away and consider the various formulations, and I believe it would be sensible for the Government to engage with various interested parties once we have come to a view about how we can properly express what we all understand is necessary policy guidance in the context of this exceptional step. Against that background, I invite noble Lords to consider not pressing their amendments at this stage.
I know I will not be popular by holding things up, but the Minister was specifically asked if he could explain the reference to,
“another EU entity or the EU”,
in Clause 6(2). I do not know whether he feels he could do that. Does it have any reference to the European Commission? The Prime Minister said we would have a binding commitment to follow EU state aid and competition law, and I wondered if it had any relevance in that context.
I am not going to elaborate at this stage because, as I say, the Government are going to go away and consider the proposals for an amendment to Clause 6(2).
I am very grateful to the Minister for that encouraging response, and I am grateful to the noble Lords and noble and learned Lords who have spoken in this debate.
On a matter of detail, the noble Lord, Lord Adonis, asked about new subsection (2B) in Amendment 56, giving guidance to the judges to look to the relevance of an EU agreement. The noble Lord asked how that would work. I shall give him an example. If the judge is seeking to interpret a provision of retained EU law, relating to, say, medicinal products; if the Court of Justice after exit day pronounces on a regulation which has become part of retained EU law, and if the withdrawal agreement has said that there will be close regulatory alignment between the EU and the United Kingdom in that particular area, then the judge would be encouraged to pay close regard to what the Court of Justice had said about the meaning of the regulation. Our court would still be in control but it would pay particular regard—that is the whole point of new subsection (2B).
There is widespread agreement around the House that the wording of Clause 6(2) is unsatisfactory and that Parliament needs to give as much guidance as possible to judges in this context to protect them from being seen to be required to take policy decisions, which would undermine confidence in the rule of law. The Government and Parliament would be very unwise to reject, in particular, the concerns expressed by the noble and learned Lord, Lord Neuberger of Abbotsbury. It is much more difficult to identify precisely what should be put in place of Clause 6(2). I am encouraged by what the Minister said—that the Government are listening and considering this matter. I am sure that all noble Lords who have spoken would be happy to contribute to the discussions that will take place before Report. I hope that, on Report, the Government will bring forward amendments to Clause 6(2).
Before the noble Lord withdraws his amendment, as I suspect he is going to do, can I ask him to clarify one point? He talked a moment ago about the need to protect the judges. Would he agree that it is a question not of protecting the judges from attack, but of protecting the independence of the judiciary and the rule of law?
I entirely agree with the noble and learned Lord. I think I said in opening this debate that it is not that the judges cannot withstand criticism of their judgments, it is rather that we are all concerned about confidence in the rule of law. As the noble and learned Lord said, if the judges are left to take policy decisions in a very sensitive context, where a decision will have to be made as to the weight—if any—to give to Court of Justice judgments handed down after Brexit, there is no doubt that they will be exposed. They will be the subject of criticism which will undermine the rule of law unless we do our job and give very clear guidance on what Parliament thinks should be the appropriate approach.
I beg leave to withdraw the amendment.
Amendment 55 withdrawn.
Amendment 56 not moved.
Housing: Holiday Lets
To ask Her Majesty’s Government what assessment they have made of the impact on the availability of long-term housing for rent of holiday lets, including those listed as rooms to let, particularly in London.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I remind the House of my interests as declared in the register.
My Lords, the Government support the sharing economy. We do not hold information on short-term holiday lets. We believe that it is for local authorities to assess the impact within their area. The Government monitor broader trends in private rented housing through the English Housing Survey. We condemn, however, any abuse of planning laws, and those in breach face a fine of up to £20,000.
I thank the Minister for that Answer, but remind him that I have asked this Question since 2015. In the previous Session, I tabled a Question for Written Answer on a number of occasions: for example, on 14 September, then again in October and in February. Each time the answer that came back was just, “No”, or sometimes, “No, it is not possible”, or, “No, we are not thinking of it”—but it was basically “No”. Why can I not be given the reason why the answer is just “No” without any accompanying explanation, when the role of local authorities in protecting residents who are being abused in their blocks is terribly important?
My Lords, I thank the noble Baroness for a reminder that I did not really need: namely, that she has asked this Question over a period of time. If she reviews the Answers that she has had, she will see that they go into considerable detail. Suffice it to say that significant progress has been made. The noble Baroness would probably do well to discuss her circumstances with the Short Term Accommodation Association, as I have suggested previously. However, Airbnb physically cannot let a property for more than 90 days in a year; it has a system designed to stop that. I think that goes some considerable way to addressing this, but I would be happy to direct the noble Baroness to meet people at the Short Term Accommodation Association who are responsible for this significant progress.
My Lords, I refer the House to my relevant interests in the register. The noble Baroness, Lady Gardner of Parkes, has raised this issue many times and deserves great credit for her persistence. Can the noble Lord say what work he and his department have done to make sure that holiday lets are not used by landlords to get round their legal obligations?
My Lords, I certainly can. I have spent a considerable time speaking to the Short Term Accommodation Association, which makes up the bulk of the people in this market, and in particular Airbnb. It proposes a data-sharing protocol with Westminster council to enable the sharing of data. The basic problem at present is that different suppliers cannot share the data one to another—so Airbnb can take care of a particular problem relating to it but cannot share the data with other providers. Airbnb is by far the largest provider, but there are many others. To enable providers to share data, they need a trigger from the local authority—any local authority that has a concern—so they can then share the data. This would take care of the problem. I will send a letter to the noble Lord on the progress being made, copy it to all noble Lords participating in the debate, and leave a copy in the Library. However, I invite my noble friend to speak to the Short Term Accommodation Association, as I know that she has particular concerns about her properties.
My Lords, the problem is enforcement, as the Minister rightly said. Westminster is probably the best example of an authority that uses the enforcement procedure, but most authorities do not use the enforcement procedure for the 90-day limit to which the Minister referred. The market has completely changed. Will the Minister also address the fact that holiday lets and Airbnb lets are now dealt with very much on a commercial basis, but in blocks of flats very often one person or one company owns all the flats and let them through Airbnb? It is not people just earning a buck or two on their own home.
I remind the noble Lord that of course this is a London issue. The 90-day limit applies only in London—and, significantly, it is a real issue only in the inner London boroughs. I am encouraging the Short Term Accommodation Association to speak to those boroughs—as indeed it is doing—to see if it can carry forward the process that it is engaged in with Westminster into the other boroughs. For example, it is developing a Considerate Nightly Letting Charter with Westminster Council—again, that could be replicated for other councils. I remind noble Lords that, where a local authority has a suspicion that the law is being breached, it can apply to the Secretary of State to restrict the 90-day power and can take enforcement action. There is the power there; it is for local authorities to do that.
My Lords, I refer noble Lords to my interest in the register. Is my noble friend the Minister aware that in one of our wards in Westminster, where I was the leader until January last year, as much as 10% of the properties are let out on short-term lets, many on a commercial basis and for far more than 90 days because multiple agencies are used? Is it not the case that a simple registration system to allow local authorities to know when the 90 days had been breached would allow cost-effective enforcement of the 90-day rule?
I thank my noble friend for that question. As I indicated, the action that the Short Term Accommodation Association is proposing will get round the particular problem that we have with the Data Protection Act, because it will then be able to share the data. The power lies with local authorities and I would gently say to my noble friend that if Westminster has a suspicion that the law is being breached, it really should pursue the matter.
My Lords, does the Minister recognise that in Westminster and other inner London authorities, in places that were originally social housing, Airbnb and other organisations are setting up short-term lets that in most cases are in breach of the leasehold or tenancy? Does he also recognise that local authorities should enforce the leases and tenancies they already have and should be backed by central government in doing so?
Obviously if there is an issue between landlord and tenant, it is for the landlord to enforce that. The Government have no role in ensuring that leases are enforced. We would encourage that, but that is a matter for the landlord. It happened relatively recently in relation to a case called, I think, Nemcova in the London Borough of Barnet. There is the power to do just that—but it is, as I am sure the noble Lord appreciates, a matter of contract, not a matter in relation to the law regarding landlord and tenant. I will say, in support of what Airbnb is doing, that it is within the law because it is ensuring that there is no let of more than 90 days on its watch. I do not think that we can reasonably ask it to do more. It cannot share the data under the law; it is looking at this protocol to enable it to do so.
My Lords, although this question is related, to a certain extent, to London—but not entirely, as the Question says—is the Minister aware that in certain national parks, we are not talking about 10% short-term lets: in some villages we are talking about 50%, 60% or 70% and the local authorities have no authority at all to stop it? Will the Government look into this, because it is destroying rural communities right across the country?
I appreciate that the noble Lord is speaking about his home area. I know he speaks with authority on the Lake District. I am very happy to look at that issue if he would like to come forward and arrange to see me with some evidence. It is obviously a very different issue because there is no suggestion of a breach of the law; it is about whether there is a particular problem.
To ask Her Majesty’s Government whether they will take steps to improve opportunities for the study of music in schools.
My Lords, the Government believe that all pupils should have access to an excellent, well-rounded education. Music is an integral part of a pupil’s education and a compulsory subject in the national curriculum at key stages 1 to 3. Between 2016 and 2020, we will provide £300 million of funding for music education hubs to ensure that all pupils have the opportunity to learn an instrument, sing and perform regularly and have access to clear routes of progression.
My Lords, the Minister will know that, in the last year alone, take-up of GCSE music in England fell by 8%. Is he aware that the University of Sussex survey of 6,500 schools found that teachers, who should certainly know, held the EBacc primarily responsible for this decline—a view supported by a recent Education Policy Institute report? Will the Minister agree to meet to discuss these concerns with myself, other interested Peers and Bacc for the Future, whose members include many organisations who are worried about the increasing marginalisation of music in our schools?
To reassure the noble Earl, Lord Clancarty, I will be happy to meet with him and colleagues from this Chamber to discuss the matter further. However, there is no evidence that arts subjects have declined as a result of the introduction of the EBacc. Indeed, the proportion of time spent studying music has remained broadly stable since 2010. Since the EBacc was announced, the proportion of pupils in state-funded schools taking at least one arts subject has also remained stable. I have a very strong personal commitment to music. My own father was cured of a debilitating stammer through learning to sing and so breathe properly. I am doing everything I can to encourage music in the system.
My Lords, I am very interested in what the Minister just said about his own family experience. While I fully accept that there is an issue about the academic study of music in schools, music also makes an important contribution to the health of schools as communities. As there is so much concern at the moment about child and adolescent mental health, would he accept that it is important that there are opportunities in schools for children to participate in music for the therapeutic and social benefits it conveys, and that that is particularly true of performing music in groups?
I agree with the noble Baroness entirely. Some case studies that I pulled in ahead of this Question bear out what she said. In my own academy trust, the Inspiration Trust, I appointed a director of music just before I took on this role, and I asked him to give me his early feedback—he started only in September. He said: “On listening and music appreciation, the pupils find listening easier and can listen for longer; pupils more readily try new things. Improved multitasking skills: pupils react, listen, move, hum along to music while focused on their main task”. With regard to extracurricular ensemble, he talks about pupils being better able to understand commitment, time management, perseverance and co-operation. So I completely agree with the noble Baroness.
Has my noble friend noted that nearly 650 independent and state schools are now collaborating in the teaching and performing of music, and would he agree that further scope exists to increase these joint ventures as independent schools seek to play a larger part in the education system as a whole, in accordance with the Government’s wishes?
I agree with my noble friend. Indeed, apart from the 641 independent schools in music partnerships, 492 independent schools invite pupils to attend lessons or performances, and 51 second music teaching staff to state schools. Since I took on this post, I have met once the chairman of the Independent Schools Council, and I am meeting him again soon to review collaboration between the two sectors.
My Lords, I declare an interest as a trustee of a musical education charity, the VCM Foundation. Can the Minister give us figures on the numbers of music teachers in schools? We as a foundation have discovered that large numbers of primary schools, in particular, now have no teachers with any musical experience. We and some others are now helping to train teachers without musical experience to ensure that all schools have the opportunity to sing together and to learn to work together in the way that one can do through music.
My Lords, the most recent figures I have for 2016 show that there is only a 0.5% vacancy rate for teachers of music in state schools.
My Lords, what steps are being taken to ensure that the £5-a-week charge for students taking GCSE music, as at Bingley, for example, will not become more widespread?
My Lords, I believe that when that was raised in the media recently, the school in question removed the charge, and I am not aware of any other examples of that happening. Certainly, if the noble Lord is aware, I would be pleased to hear from him and I will investigate it.
My Lords, my noble friend Lord Kennedy once played the bassoon in the London schools orchestra. The chances of a young person from his school in Peckham doing so this year are considerably less because of the cuts to funding in many state schools for arts and creative subjects. Despite what the Minister said, I concur with the noble Earl, Lord Clancarty—in 2017 the number of pupils taking GCSE music is down to an all-time low of 5.5%, which is a very serious situation.
I have told the Minister before that Labour will introduce an arts pupil premium to ensure that every child in a primary school in England has the chance to learn a musical instrument, go to the theatre, or take part in dance and drama. The funding necessary for this cannot be escaped by the Government. Will the Minister say why the facilities in state schools are still so much worse than they are in many private schools—a situation which would be reversed by Labour’s arts pupil premium—or are the Conservative Government quite content for the study of music to be the preserve of the wealthy?
My Lords, spending on music and cultural education programmes has been stable for the last four years—it declined in 2013-14 and 2014-15, but we increased it. The noble Lord asked me a Question about EBacc in November, and I gave the response then that we probably have different priorities. I believe EBacc has been an enormous tool for improving social mobility in children from less advantaged backgrounds. We are seeing a dramatic increase in the number of children who are studying EBacc subjects such as science, geography, history and modern foreign languages. The reason we were so keen on this is that it provides an opportunity for these children to have a shot at a good university. We know good universities have facilitating subjects, which tend to be the EBacc subjects. Overall, the commitment to music remains and 120 music hubs are supporting some 14,000 ensembles across the country.
To ask Her Majesty’s Government what specific proposals they have to increase the number of fully trained nurses working in the National Health Service and the associated care services.
My Lords, there are record numbers of nurses working in the NHS in England, including 13,900 more acute, elderly and general nurses. To increase the future supply of registered nurses, the Government are funding over 5,000 more student nursing places for those entering training each year from September 2018. We are opening up new training opportunities to increase the number of professionally qualified nursing staff across the health and social care workforce through the apprenticeship route.
I thank the noble Lord for his reply, but I do not think the Government really grasp the seriousness of the shortage of nurses. In the last two years, 33% fewer students came forward. We have a shortage of 40,000 nurses and it will take years to put that right. Can I make a suggestion to him? The best and quickest way to increase the number of trained nurses is for the Government to drop their opposition to the bursary scheme for postgraduate students. These two-year courses are cheaper; it would cost the average funder £33,500 for the two-year course, which is half as much as the average trust would pay simply to employ an agency nurse for a year to fill the gaps. Why will the Government not follow that route?
My Lords, we take very seriously the need to train more nurses. There are 52,000 nurses in training and, as I have said, there is a commitment to increase the number of training places by 25%, which is obviously how we get to a long-term solution. On the issue that the noble Lord has raised about postgraduate bursaries, the policy intention is to bring these courses in line with other courses. I know that this is an issue of great concern. The Royal College of Nursing has expressed its concerns and we take those seriously. I also know that the regulations have been prayed against in the other place; they are also being looked at in the Secondary Legislation Scrutiny Committee and we await its report. I reassure him that the issue is being considered and we will respond once the committee has reported.
My Lords, as someone who is frequently involved in regulatory work involving nurses, I ask my noble friend what is being done to ensure a proper standard of clinical performance and a proficiency in languages on the part of nurses trained abroad and, most especially, on the part of those trained outside the European Union.
I thank my noble friend for highlighting that important issue. A very stringent language test is imposed by the Nursing and Midwifery Council—indeed, it is perhaps so stringent that it has excluded some nurses who are perfectly capable of practising in this country. A review of that is going on at the moment to make sure that a proper line is drawn—ensuring professional competence, including in technical language, while not excluding people who would be perfectly capable of practising well in this country.
My Lords, is the Minister aware that the vacancy rate for nurses in social care settings has doubled over the last four years? Given the other pressures on nursing homes, will the Government take specific action—perhaps grants for placements—to relieve this problem, which the NAO has described as dangerous?
The noble Baroness has highlighted an important issue, which is the number of nurses in social care. I recognise that to be a problem, as does the department. A specific social care workforce consultation will get under way and is linked to the overall draft workforce plan that Health Education England has published. This is something that we are looking at. We can solve it to some extent by increasing the overall number of nurses, but we need to find ways of attracting them into the social care profession.
My Lords, does the Minister agree that the lack of NHS nurses and other healthcare workers is due to the lack of a long-term sustainable workforce plan, as identified by the House of Lords committee report? If, following that report, the Government now have a long-term workforce plan for the NHS, when might it be published?
I congratulate the noble Lord on his committee’s work in this area and on making a proposal, which we have followed in putting forward a 10-year draft plan. I hope that he will have had the chance to see that—it will of course firm into a concrete plan. It is fair to say that it is honest about both the successes and the challenges that we face in needing to train more nurses. We are trying to find new ways of doing that, not just through the university route but through apprenticeships.
My Lords, yesterday evening I went home and turned on my local news to find that the Royal Sussex County Hospital was calling on people who might otherwise use its services to keep away. The hospital has some 900 vacancies. How can the noble Lord come to the Dispatch Box and tell us about the wonderful figures that suggest that all is well and good in the health service regarding nursing vacancies, when the reality on the ground is somewhat different? My local hospital is facing a crisis.
I do not pretend that all is well and good; I merely state what has happened. We know that there are challenges from increasing demand in the health service. We need more staff, which is why we are committed to training more staff. Unfortunately, I am not in a position to comment on the challenges of the noble Lord’s trust but I will be delighted to look at them with him. However, as we know, there is more demand and we have an ageing population. We need more staff and we are trying to train those staff.
My Lords, I declare an interest which is not in the register. One of my first jobs was as a VAD nurse, which some of your Lordships might remember—it was a long time ago. What do the Government think of bringing back VAD nurses, or, as they are called today, auxiliary or volunteer nurses, to help in the nursing crisis?
I thank my noble friend for that question. I think that we need to diversify the routes into nursing and this is probably how we do it. One way in which that is happening is through the creation of nursing associates, which is a level 5 apprenticeship programme. To be clear, these are not nursing positions—they are not registered nurses—but they provide an opportunity for those who have a desire to get into that career and want to learn on the job but who do not yet have the skills to start working towards a full-time registered nursing position.
Emergency Hospital Admissions
To ask Her Majesty’s Government what steps they are taking to reduce and prevent avoidable emergency hospital admissions.
My Lords, NHS England and NHS Improvement are implementing a number of national programmes to transform NHS services so that, where clinically appropriate, a patient’s care is managed without the need for a stay in hospital. This is being achieved through services becoming better integrated across health and social care, as well as managing hospital care differently, so that more patients are treated as day patients in A&E or streamed to see a general practitioner.
I thank the Minister for that Answer. The recent report of the National Audit Office stated that nearly 25% of people who go into hospital do so in an avoidable situation, which could be sorted out in the community. This is a clear case of why we need more prevention. What extra thinking and resources will the Government bring into the community so that we do not have the ridiculous situation of such people going into hospital, where we have the problem of a shortage of nurses and all the other things that knock on?
The noble Lord makes an important point. It was good to study the report and the noble Lord is right about avoidable hospital admissions. Two changes are happening. One is GP extended access, which now has 95% coverage across the country—that is, evenings, weekends and so on—as primary care. We also have interesting results coming from the new models of care programme. I highlight one that is happening in mid-Nottinghamshire. It is called PRISM and it is a virtual ward for at-risk patients which enables multidisciplinary teams to look at vulnerable people before they come to hospital. It has reduced A&E attendance for those aged over 80 by 17%, which is significant. It is precisely this kind of thing that will make the difference that we need.
Is the Minister aware that in 2016-17, 30% of admissions to A&E of people aged 65 and over were alcohol-related? Is he further aware that, given the need for the services of psychiatrists to look after those people, training for psychiatrists has reduced dramatically in the past 10 years and we have no facilities available to look after them? Turning to a longer-term public health policy, when will the Government do something about the increasing number of people going into hospital due to alcohol problems?
It is now the case that thousands of GPs and hospital staff have been trained to screen for the signs of alcohol abuse and to provide intervention. So not only are there dedicated staff and dedicated public health programmes, but hospital and primary care staff have now been specifically trained to look for the signs and to signpost people to care when they need it.
Does the Minister agree that one of the causes of the recent pressure on acute hospital beds is that young people and children who are waiting for scarce specialist mental health beds are frequently put into inappropriate adult wards because there is no room for them anywhere else? Would the Minister look into that again?
I thank my noble friend for making that point. Unfortunately, we have a growing prevalence of the kind of mental illness he is describing. We are in the process of increasing the number of in-patient beds available for young people going through those kinds of episodes. That is the right thing to do. It means that they will not have to travel so far from their homes and has the benefit of relieving the impact on adult acute beds.
Is the Department of Health and Social Care, in conjunction with NHS England, monitoring the completeness of 24/7 nursing coverage in the community? Even though the pilots, which will have a virtual ward, will help determine the most vulnerable patients, those patients will still need hands-on nursing at the time they need it. If it is not available, they will inevitably end up being transported to hospital.
One of the issues the NAO reports is that we do not yet have good enough data on what is happening in the community. The creation of the community services dataset will enable us to track precisely what is available in the community in every area. Concerns have been raised in this House before about the number of district nurses, which unfortunately has fallen over recent years. It has now shown a small increase year on year and we hope we are starting to turn the corner on community nursing numbers, too.
My Lords, there are two stark facts from the NAO report. First, the real problem has been the reduction in social care funding. Surely the real answer to this problem, above all else, is to restore what has been cut. Secondly, I refer the Minister to the chart in that report which shows that, despite the increase in demand, bed capacity has been cut by 6,000 beds since 2010-11. I understand that in February the occupancy rate reached a dangerously high level of 95%. Does the Minister accept that, while we need to prevent avoidable admissions, it is very unwise to reduce acute care capacity at the moment?
I agree with the noble Lord about funding. The Government have now made £9.4 billion of extra funding available to local authorities over three years, including in the most recent local government funding settlement. The noble Lord makes a good point about bed capacity: it had shown a downward trend for a long time before stabilising in recent years. I point to two successes this winter. The first is the improvement in delayed transfers of care—we have really started to get some traction on that. The second is about £60 million, I believe, of funding that went into providing extra bed capacity over winter. Occupancy levels are too high. The NHS is getting better at managing it more efficiently, but we certainly need to do better.
My Lords, does the Minister accept that part of the problem with emergency hospital admissions is the difficulty people have in accessing their GPs? Some of this is perhaps because of the high levels of stress among GPs, but there is also recent evidence suggesting that it is because of the £1 million pension cap imposed on GPs, which means many more of them are retiring before the age of 60. Surely, in the interests of the NHS, this particular cap should be looked at again.
Although the number of early GP retirements has been rising, the number of total GP retirements has been falling, which is encouraging. It is also important to point out that, while the pension cap obviously applies to everybody, it has not had the impact that the noble Lord described on dentists or consultants, so there is something more to it. It is to do with how GP services are structured and providing support for that partnership model. That is what we are trying to do at the moment.
European Union (Withdrawal) Bill
Committee (5th Day)
Relevant documents: 12th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee
57: Clause 6, page 3, line 38, leave out from “decided” to second “so”
My Lords, Amendment 57 in my name is to Clause 6(3) which says:
“Any question as to the validity, meaning or effect of any retained EU law is to be decided, so far as that law is unmodified on or after exit day and so far as they are relevant to it … in accordance with any retained case law … general principles … and EU competences”.
My amendment would delete the words,
“so far as that law is unmodified on or after exit day”.
This would mean that retained EU law was continuing to run using EU-derived interpretation, including for the amended parts. This is by no means a perfect amendment, but it is intended to probe the relationship between the wording in subsection (3) and that in subsection (6), which says that modified law can be incorporated as in subsection (3) if it,
“is consistent with the intention of the modifications”.
I want to gain some more clarity on the presumptive path around those two subsections.
The general message that we are being given by Government—the high-level presumptive path, if you like—is that there is not really an intention for policy change via modification. But, there are no absolute commitments to state that on the face of the Bill, perhaps because incidental things may nevertheless count as policy change.
My submission, which applies to other clauses and the schedules as well, is that the need for adaptability does not remove the possibility for a more granular laying out of the presumptive path. That leads me to query what presumption comes from the order of the subsections. I submit that the default presumption should be that EU case law, principles and competences apply unless the Government have specifically explained why that does not work in connection with a particular modification. That seems a clearer and easier way to do things because the modifications are the focus of the attention, presumably with explanation. That will surely then be fed into the scrutiny when we get to the delegated legislation.
However, I also have in mind some of the debate we got into late on Monday night about rights in Schedule 1. The structure of Schedule 1 is somewhat similar in so far as all challenges are first disallowed and then some might be allowed by regulation. I contrast that with the present clause, which disallows interpretation to apply to modifications, and then subsequently says that it does not stop it being as in subsection (3). I note it does not say who is making it clear whether the modifications come under EU law. I wonder whether it will be left to the judges—if it is, they may want better clarity—or will the modifications themselves make it clear when they are put before us?
In the context of Schedule 1, the noble and learned Lord, Lord Keen, referred to the regulation that provides the right to challenge validity as an exceptional power, which I suppose it is by the way it is formulated as an exception to the earlier general exclusion of challenges. I took the noble and learned Lord to mean that the power would be used rarely, rather than, for example, as a list prepared in advance, which was the point probed by my noble friend Lord Beith. If I follow a similar logic on the follow-on positioning of Clause 6, does that mean that the situation envisaged in subsection (6), with the retaining of EU interpretation for some modified parts, will be exceptional, in the rare sense, or will it be normal in the sense of maximising the status quo? We need to know.
Also, again reflecting the Schedule 1 debate, Clause 6(3) refers to a question of validity of retained EU law, so is it correct that retained EU law can be struck down unless we follow the primary legislation suggestion of the Constitution Committee or unless it is already primary legislation, and that it would be struck down by common law, not EU principles or case law, which would just help with interpretation? If that is so, might some EU retained law be struck down in effect because it came under common law plus EU interpretation, whereas it might not have been struck down if it had been under common law alone? That is what I deduced from reading Hansard and the response to the question from the noble Lord, Lord Pannick, on common law. I confess that I did not necessarily hear the response properly at the time. That is nothing against the noble and learned Lord’s diction and more to do with the temporary impairment of my hearing due to my head cold, as well as to my voice today.
The other amendments in the group are of a different nature. They relate to things that can be taken into account in interpretation. My Amendment 59 and Amendment 58 in the name of the noble Lord, Lord Krebs, are similar, referencing recitals and preambles. My amendment is to subsection (3)(b), which relates to EU competences, because I wanted to draw attention to the fact that not only does the content of recitals need to be used for casting light on interpretation, but they are part of the competences architecture and directions relating to what is expected of delegated legislation, just as can be the case with empowerments for regulations in UK legislation. It is part of the definition of EU competences for interpretation purposes.
To make my position clear, Amendment 60 specifically references powers of delegation. Footnote 24 to paragraph 83 of the Explanatory Notes says:
“Recitals will continue to be interpreted as they were prior to the UK’s exit from the EU … casting light on the interpretation … but they will not themselves have the status of a legal rule”,
I do not think that that explanation is necessarily sufficient to encompass what I have just tried to lay out. Given that the role of EU agencies will be taken over by UK bodies, they should also take over the constraints that are written in, at least until Parliament decides otherwise. Therefore, recitals need to have a greater role than previously, or at least that possibility should not be excluded.
As a general point, I mention that there is a symmetry between how EU legislative Acts can be allocated as between those that should require primary legislation to amend and those which can be considered delegated, and the EU architecture of competences: those two are symmetrical. If that mapping is got right, getting returning powers allocated into their proper place in the UK, particularly between Parliament and regulators, then that logic of how interpretation is influenced, not just by EU competences versus member states but also with regard to internal EU levels of competences, will flow naturally into the structure.
There are other important policy points within preambles and recitals and I will leave those for other speakers to elaborate on. I will just say that I agree with all that I am expecting them to say on that point about their importance to policy. I beg to move.
My Lords, I shall speak to speak to Amendment 58, in my name and those of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Jones of Whitchurch, and my noble friend Lady Brown of Cambridge. As the noble Baroness, Lady Bowles of Berkhamsted, has already mentioned, her Amendment 59 has a similar intent to Amendment 58 and therefore I support it.
The purpose of this amendment is very simple: it is to ensure that recitals and preambles to EU laws are given a clear legal status by the Bill. Why is that important? The recitals and preambles explain the background to, and objectives of, legislation and are therefore essential to understanding the legislation that follows. While in UK law the purpose of any piece of legislation will be clear as a result of the process leading up to the legislation—for instance, a Green Paper, a White Paper and a parliamentary debate—with EU-derived law there is no equivalent process. Therefore, the recitals and preambles are essential for placing the legislation in context. If they are not given a clear legal status they may be forgotten or ignored by decision-makers and the courts. As has already been mentioned, although the great repeal Bill White Paper, in footnotes 17 and 24, recognised the importance of recitals and preambles, this does not provide the legal certainty that is needed.
I am approaching this matter from the perspective of environmental protection, so let me give an environmental example to illustrate my point. The preamble to the strategic environmental assessment directive contextualises it within a larger international framework. It refers to the following: Article 174 of the Treaty establishing the European Community; the Fifth EC Environmental Action Programme, “Towards Sustainability”; the Convention on Biological Diversity; and the United Nations/Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context. These references establish that the directive prioritises sustainable development, conservation and sustainable use of biological diversity. In contrast, the Explanatory Notes of the UK regulations appear to be focused on planning and development. They present the regulations as a requirement to be satisfied, rather than as a clear attempt to put environmental protection obligations at the heart of planning law.
I very much hope that the Minister will be able to reassure us that the intent of transposed EU Laws will be retained. If this amendment, together with the amendment of the noble Baroness, Lady Bowles of Berkhamsted, is not accepted, please could he tell the Committee how he intends to ensure that the recitals and preambles are to be embedded in our laws after exit day?
My Lords, the noble Lord, Lord Krebs, has explained why these recitals and preambles are so important, and I thought that I would give an example. They are important because of the purposive approach of EU law, which is quite alien to our UK law, which has a literal approach. This is particularly important in the area of environmental law. For example, the European court relied on the recitals and preambles to interpret article 22 of the air quality directive in the ClientEarth litigation, where it successfully forced the Government to publish their air quality plans. This ruling was absolutely crucial for our health and well-being in the UK and without using the preambles the court would not have been able to properly interpret the wording of the substantive article. The courts in our country will have a huge job on their hands of making sense of all this retained EU law that we are going to thrust upon them if they do not have the recitals and preambles; these are essential to understanding the law and their job will be much harder without them. I beg the Government to look at this issue and rethink their position.
My Lords, my name is also added to Amendment 58 and I support the very compelling case made by the noble Lord, Lords Krebs, and, indeed, by the noble Baroness, Lady Jones.
I, too, speak as an environmentalist. As has already been highlighted, the implementation of EU environmental law in the UK is drawn from several sources, all of which, in our application of it, have equal weight. For the most part, that it is a welcome and uncontroversial addition to our UK environmental legal framework; it is often uncontentious and applied without legal recourse. Indeed, few people would argue that we should revert to dirty beaches and polluted bathing water and there is a common consensus that we need to adopt the EU regulations and directives.
Though these standards are very much taken for granted they do not always originate from the same legal source, which is why amendments such as Amendment 58 are so important. All the amendment does is to seek to protect what we have now—nothing more than that. The recitals and preambles which preface the formal wording of the legislation are important for explaining, in layperson’s terms, as the noble Baroness, Lady Jones, explained, what the legislation intends to achieve. They often include important principles which underpin the legislation. I have referred previously to examples of these preambles, such as article 1 of the environmental liability directive, which includes reference to the polluter pays principle, and article 1 of the habitats directive, which spells out the aim to deliver biodiversity conservation. However, there are many others, some of which have gone on to be tested and captured in UK legal judgments, but others have not.
Very simply, my challenge to the Minister is: if these amendments are not acceptable, what will be the future status of these preambles, and how can we be assured that they will have the same effect as we have previously enjoyed? We regard them as an integral part of current EU law, so if there is no place for them in the transposed UK law, does the Minister accept that this will represent a watering-down of the Government’s promise to enhance, rather than diminish, our environmental standards? I hope he can clarify that.
My Lords, I would have thought it was clear that when we are incorporating EU law into United Kingdom law, the law in question will not be edited—apart from questions of not working and so on, which are separate—and the whole instrument will be transformed into UK law. Judges always try to understand the legislation as a whole and read the document as a whole. Therefore, I think I can assure noble Lords that the courts here will look with great interest at these recitals and preambles—particularly in view of what the noble Baroness said about the difficulty of some of them—to see if they can help them understand properly and make a proper construction of the instrument in question.
My Lords, in that case, what is the point of not keeping them in?
There is no question of not leaving them in. They will be left in in any case. There is no question of putting them out. I will see what my noble and learned friend the Minister has to say about this but so far as I am concerned, it is not necessary because the whole instrument will be incorporated. There is no question of editing it or leaving out half of it or the beginning or anything. My noble and learned friend may be willing to give the assurance that the whole instrument will go in. I must say, I would have hoped that that would be understood without it having to be said.
My Lords, I hesitate to challenge the noble and learned Lord, Lord Mackay, on points of law, but the fact of the matter is that when we have transposed directives and regulations previously, they have excluded the preambles and the recitals, as they have excluded aspects that are in the treaties rather than the individual directives and regulations. It may well be that the courts, in their wisdom, will take into account something that European law has previously said, but unless that is laid down as a central principle of this transposition, whether or not to take it into account will be at the courts’ discretion.
The Government’s commitment was that we would have the European law on day one of Brexit in exactly the same form as we did the day before. That has broken down in the way in which the Bill has been presented in a number of respects. It has broken down on the European Charter of Fundamental Rights; it has broken down with regard to animal sentience, as we debated the other day; it has broken down on the environmental law which the noble Lord, Lord Krebs, referred to; and I was going to use the air quality example that the noble Baroness, Lady Jones, referred to. Unless Parliament gives a signal to the courts that these preambles and recitals must be taken into account —as must, in my view, the principles laid down in the treaties—we are not doing what the Government have promised the people of this country that they would do; namely, that European law would not be changed on day one of Brexit and then only if it was necessary or Parliament so decided. Unless we do something very similar to what the amendment of the noble Lord, Lord Krebs, does, we are not doing what the Government have promised the nation.
My Lords, I support Amendment 58 in the name of noble Lord, Lord Krebs. I was greatly relieved by the noble and learned Lord’s rebuttal because my interpretation of what we are doing is that we will not have the protection of the recitals and the preambles. Our problem is that any law leaves room for interpretation. EU law in particular is often a reflection of the manner of its birth: it has 28 single parents.
To reassure those of us, particularly from my point of view as the spokesperson on energy and climate change, who do not necessarily trust things to naturally follow and for this Government or possible future Governments to be as keen on some of the standards required in EU regulations and directives, it is in the recitals and preambles that we can gain some measure of comfort, as a guide to the intention of a particular instrument. The recitals supplement the operative part of the directive. They are interpretive tools in the EU legal order, and if we simply transfer the law but not the recitals we are removing a beneficial tool. I am afraid that assurances and good intentions from the Government are not adequate when it comes to something as important as our environmental protection.
It is quite clear that the Bill does not deliver that security and surety. We need certainty in the Bill, so I hope that the Minister will be able to accept the amendment. This amendment is only part of that certainty and protection.
My Lords, these amendments fall into two, possibly three, groups. I shall start with the group that has been the subject of the recent speeches from noble Lords—the interpretation of EU retained law. The amendments tabled by the noble Baroness, Lady Bowles of Berkhamsted, and the noble Lord, Lord Krebs, particularly require that the preambles and recitals should be capable of being taken into account when it comes to interpreting EU law. They are completely right, as are other noble Lords who have spoken, that at the moment under EU law the recitals and the preambles are an important part of the interpretation. I have had the privilege of appearing on a number of occasions before the European Court of Justice, both in my capacity as a government Minister and before that as a lawyer retained to argue cases, and it absolutely is the case that, unlike the techniques that we apply when we come to interpret British statutes, the preambles and recitals are very important. It therefore would be significant that they should be capable of being applied in the interpretation of EU retained law after exit day. If they were not it could lead, for example, to the result that a piece of law applied and interpreted before exit day using the preambles and recitals could be interpreted differently after exit day, and that would be damaging to legal certainty.
I very much doubt that the Government intend that there should be any difference, and I believe they intend that the preamble and recitals should be capable of being used in the interpretation, as they so often are. The question then becomes whether it is important and right to make reference to that specifically in the Act as it goes forward so that everybody, including the public, know that application of the recitals and preambles to these EU instruments is something that Parliament intends. Where I might part company a little with the way that Amendment 58 is drafted is in its apparently requiring that the interpretation should be in accordance with the recitals and preambles. The recitals and preambles should certainly be taken account of and proper regard should be given to them, but it is possible that requiring that they be interpreted in accordance with the preambles is going a little too far. No doubt the Minister will have something to say about that, as I hope he will have something to say about the principle.
The principle, which I support from these Benches, is that it should be clear, one way or another, that the recitals and preambles should be capable of being taken into account in interpretation because that is an important part of understanding that legislation. I have no doubt that the noble and learned Lord, Lord Mackay of Clashfern, is right that the process of transposition which is intended by Clause 1 does not involve excising the recitals and preambles. What will come in is everything that is in that which is defined as EU retained law at the moment, but that does not quite cover the point about whether there is a risk that somebody might think that they are not allowed to, or should not, take account of the recitals and preambles. Of course, that depends on what the judges say. That is the principle in relation to the first part of this group of amendments. I support the need to be clear that those recitals and preambles can be taken into account, but will listen very carefully to what the Minister has to say on that.
The second part of the group is a little different. The noble Baroness, Lady Bowles of Berkhamsted, made an important speech last week in relation to the different ways we may look at validity in the future, in particular by reference to the origins of particular instruments. I said then, and continue to think, that it is important to study carefully what the noble Baroness said when we return to that issue.
I would ask the noble and learned Lord the following question, which emerges from the amendment which has been put forward. There appears to be a potential inconsistency between two parts of the Bill. Paragraph 3 of Schedule 1, which we looked at in discussing general principles of EU law the other day, states:
“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law”.
The Minister will recall that I spoke then as to why we thought that was the wrong approach and that general principles of EU law should continue to be capable of founding causes of action, including, potentially, for disapplication of executive acts or legislation. We will no doubt come back to that as well. I referred for example to the Walker case, in which the general principles were relied on in relation to pension rights. Members of the LGBT community will be very unhappy if they learn that the Government’s intention is that this principle should not be capable of being applied to their benefit afterwards.
We see that statement in paragraph 3 of Schedule 1, but on the other hand the provisions to which the noble Baroness has drawn attention appear to say that the question of validity can be considered by reference to the general principles, which looks as if it is not just a question of interpretation but that somehow the general principles have an impact on the validity. I would like to understand from the noble and learned Lord, now or afterwards, just how those two provisions sit together. Is it intended that validity should still be determined by reference to general principles of EU law? If so, how does that square with the provisions in the schedule?
The noble Baroness explained the purport behind Amendment 60, and I look forward to hearing what the Minister has to say on that issue too.
My Lords, what I am about to say is designed to help—although whether it achieves that may of course be doubted. The Government have stated that the central object of the Bill is to ensure that the law on the day after Brexit is the same as on the day before. But it is also the Government’s stated aim—one I would hope is shared by all, or certainly the great majority, in the Chamber—that the EU law retained is certain and clear rather than left in very considerable doubt. I would suggest it is that which explains provisions such as paragraph 2 of Schedule 1, relevant to the question of whether the general principles of EU law are retained, which features in the provision under Clause 6(3), which we are now discussing. Indeed, it also explains Clause 4(2)(b), which we talked about a few days ago—although it seems like weeks—and the non-incorporation of the charter, although I shall show very considerable restraint and not go further down that road. We keep straying on to it—although I had thought that, at least for Committee stage, we had put it to bed some while back.
The amendments in this group, I suggest, will not assist in clarifying and making certain and predictable the application of retained EU law. I therefore cannot support them.
My Lords, I support Amendment 58. This comes down very simply to the fact that, as a result of the discussion we have heard today, the recitals and preambles either are brought across automatically—in which case, some of the statements made at the debate in the other place on this issue, which were quite lengthy and considerable, need to be re-examined, because my impression of those was that there was no guarantee of preambles and recitals being brought across—or they are not clearly brought across, in which case we need something in the Bill that does so. So I would be very grateful if the Minister would clarify, first of all, whether he believes the Government are convinced that they are already clearly brought across.
My Lords, first of all perhaps I may observe that, pursuant to Clause 3 of the Bill:
“Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day”.
That brings over direct legislation, including recitals, as I believe a number of noble Lords have understood.
The Government’s position is that, as long retained EU law remains as part of the UK statute book, it is essential that there is a common understanding of what the law means. Therefore, to maximise certainty, any question as to the meaning of retained EU law will be determined in the UK courts, in accordance with the CJEU’s case law as it exists immediately before the UK leaves the EU. That is set out in Clause 6(3). Any other starting point would lead to a change in the law and risk creating considerable uncertainty, if not confusion, on exit day.
However, we do not want to fossilise that case law. That is why, pursuant to Clauses 6(4) and 6(5) of the Bill, there is provision for the Supreme Court, and indeed for the High Court of Justiciary in Scotland, to depart from that situation when employing their own jurisprudence. The test would be that which they apply at the present time in departing from their domestic jurisprudence.
While it would be fair to say that the Constitution Committee has not always seen eye to eye with us on the Bill, on this particular issue they described the Government’s position as clear and sensible. Retained EU law will of course be modified after exit day by Parliament, and indeed by the devolved legislatures. It is right and sensible that it should no longer be interpreted in line with retained EU case law, following those modifications. But, in other cases, it may be appropriate that, even where there has been some modification, it should continue to be interpreted in that same way. What we have in mind is a situation in which a modification simply changes a reference, for example from an EU commission or agency to a UK public body, but leaves the substantive scheme of the retained EU law exactly as it was before. That is the purpose of Clause 6(6): to ensure that, where there is a modification that has no impact on the operation of the scheme, we should continue, pursuant to Clause 6(3), to amend in an appropriate fashion.
Amendment 57, which was moved by the noble Baroness, Lady Bowles, would remove the reference to unmodified law from Clause 6(3). But one effect of that would be to cast doubt on the operation of Clause 6(6) and the ability of modifications to retained EU law to displace the binding effect of pre-exit CJEU case law. That uncertainty, we suggest, should be avoided.
Can I come on to the issue of recitals?
I intervene on the Minister before he moves on to that topic. If the words that the noble Baroness’s amendment would remove—
“so far as that law is unmodified on or after exit day”—
remain in, would it still be the Government’s position that any part of an EU law can be interpreted in accordance with these principles, even if another part of that law has been modified? Could he explain precisely? Is it a question of looking at a law and saying that part of it has been modified, and therefore we no longer look at EU retained law to interpret what is left—or is it that, once it has been modified a bit, it means that it is no longer subject to that interpretative technique? It would be very helpful to have that clarification.
I am not sure that I am entirely following the noble and learned Lord’s point. To express it this way, where after exit there is a modification to retained EU law but that modification does not go to the substance of the retained EU law, which would have to be addressed on a case-by-case basis, Clause 6(6) then allows for the continued interpretation of that retained EU law by reference to Clause 6(3), notwithstanding the relevant modification. That is why I sought to give the example of a modification that simply took out the reference to an EU agency and substituted a UK agency.
I hope that the noble and learned Lord and the Committee will permit me to intervene, because it is important to know how this is going to be interpreted. I do not see in these words anything about a proviso where the modification does or does not go to the substance of the directive. What my question had in mind was that, if you had a directive that has 10 provisions in it, for example, and if one of those was modified, or indeed nine of them, when it comes to the one provision that has not been modified, does one treat the proviso as applying or not applying? In other words, is that therefore modified retained EU law, which cannot be interpreted in accordance with retained case law?
With respect, it could all be interpreted with reference to retained case law. Clause 6(6) says:
“Subsection (3) does not prevent the validity, meaning or effect of any retained EU law which has been modified on or after exit day from being decided as provided for in that subsection if doing so is consistent with the intention of the modifications”.
So the point is being made that, even where there has been modification post exit to retained EU law, you may still find yourself on a case-by-case basis deciding that you can construe that retained EU law, notwithstanding the modification, in accordance with Clause 6(3). If the noble and learned Lord wishes to discuss the matter in some detail later, I am quite happy to take him up on that.
That is why I did not stand up, because I think that it is better if we discuss it outside the Committee.
So be it. And there was me thinking that I was being clear.
I shall touch on Amendments 58 and 59 as well as Amendment 60, which are really concerned with what is being brought over into retained EU law. I reiterate the point that I made earlier that, pursuant to Clause 3, we bring over into retained EU law all the recitals and other material in the EU regulations and directives for the purposes of interpretation and then application—a point made by my noble and learned friend Lord Mackay of Clashfern earlier. If I may say so, that is reinforced, although perhaps not quite as patently as some noble Lords would wish, by Clause 6(3), which refers to the requirement to address the matter in accordance with any retained case law and retained general principles of EU law. The retained case law includes a body of case law that is establishing and has established clearly the principle of interpretation by reference to the relevant recitals in the directives and regulations.
Indeed, as the noble and learned Lord, Lord Goldsmith, observed, when addressing the matter in the context of the ECJ, as it was, or the CJEU, one finds that these recitals sometimes play a very material part in the way in which they interpret and apply legislation that is drafted in a rather—if I may say so, without being pejorative—looser way than is perhaps the norm in domestic statutory provision.
The noble Baroness’s amendments are, to that extent, unnecessary, because all these recitals are brought into retained EU law and, pursuant to the principles established in the case law of the CJEU, they will be brought into account when the court comes to interpret the relevant provisions. This point was raised in Committee in the other place, and the then Bill Minister undertook to write and place a letter in the Library to elaborate on and explain this point. I took the step of inquiring about the locus of this draft letter. Like much correspondence from government, it has to go through a number of iterations and a number of departments, but I am told that the final draft will be in my box at the weekend—I look forward to it. Pursuant to that undertaking, I will ensure that a copy of the relevant letter is placed in the Library of this House in order that Members may see it and consider the position in more detail before Report.
I hope, in the light of that, noble Lords will see fit not to press these amendments at this stage.
I thank the noble and learned Lord for his response. I appreciate that some of what I was trying to outline was complicated, and made more so by it no doubt being difficult to listen to. I am not convinced that the point is nailed with regard to the recitals of directives, not least because there is no provision to publish those in Schedule 5. If you are going to rely on them in court, you will have to adduce some other evidence, whereas regulations are going to be published. That lies behind the amendment that I tabled to Schedule 5—it is for advance information, if you like.
I think this is a technical fix—I may be wrong, and I just bring that to noble Lords’ attention. I think I understand what has been said about Clause 6(6) in that, if the modification is trivial then, for that bit of the legislation, nothing changes and another bit in the same legislation would probably remain unaffected. So, within an individual piece of legislation, the impact of the recitals might have been removed from some bits and not from others. I think that is what was being said, and that is where the noble and learned Lord, Lord Goldsmith, was trying to get some clarity. Maybe we can take that offline to get that clarity. I am still not quite sure who makes that decision in Clause 6(6), and whether it will be something that appears when we get the schedule modifications or whether the courts and others will be left trying to decide it for themselves.
This may be something that we have to return to but, with the Committee’s agreement, I beg leave to withdraw my amendment.
Amendment 57 withdrawn.
Amendments 58 to 64 not moved.
Amendment 65 had been withdrawn from the Marshalled List.
Clause 6 agreed.
66: After Clause 6, insert the following new Clause—
“Maintenance of EU environmental principles
(1) Public authorities must have special regard to and apply the principles set out in this section.(2) The principles in this section are—(a) the precautionary principle as it relates to the environment,(b) that preventive action should be taken to avert environmental damage,(c) that environmental damage should, as a priority, be rectified at source,(d) the polluter pays principle, and(e) that environmental protection requirements must be integrated into the definition and implementation of policies and activities, with a view to promoting sustainable development.(3) The principles in subsection (2) may be called the “environmental principles”.(4) In carrying out their duties and functions arising by virtue of this Act, public authorities must take account of the public interest in—(a) promoting sustainable development in the United Kingdom and overseas,(b) preserving, protecting and improving the environment, (c) the prudent and rational utilisation of natural resources,(d) promoting measures at the international level to deal with regional or worldwide environmental problems, and combat climate change,(e) guaranteeing participatory rights including—(i) access to information,(ii) public participation in decision making, and(iii) access to justice,in relation to environmental matters, and(f) acting in a way that takes account of available scientific and technical data.(5) When making proposals concerning environmental protection, public authorities shall take as a base a high level of protection, taking account in particular of any new development based on scientific facts.(6) Subsection (7) applies in any proceedings in which a court or tribunal determines whether a provision of primary or subordinate legislation is compatible with the environmental principles.(7) If the court is satisfied that the provision is incompatible with the environmental principles, it may make a declaration of that incompatibility.”
My Lords, this amendment stands in my name and those of the noble Lords, Lord Krebs and Lord Deben, and the noble Baroness, Lady Bakewell of Hardington Mandeville. Amendment 108 stands in my name and I have added my name to Amendments 112 and 113 in the name of the noble Lord, Lord Krebs.
This group of amendments goes to the heart of the concerns about the potential impact of the Bill on established environmental safeguards in the UK. On earlier amendments we rehearsed the gap in environmental protection that might occur if the transfer of legal rights is limited in the way that we have spelled out, particularly in its reliance on case law. The Minister may put forward a similar argument in answering these questions but it would be useful to have it on the record so that we can look at it in detail after the debate.
Amendment 66 tackles the issue of environmental principles head on and spells out the core principles that are needed to achieve the Government’s promise of equivalence in environmental standards. These are: the precautionary principle, the preventive action principle, the principle that environmental damage should be rectified at source, the polluter pays principle and the principle that environmental protection should be integrated into policies to promote sustainable development. To avoid any uncertainty these principles should be part of domestic law on day one, the public should be able to rely on them, the court should apply them and public bodies should follow them. These principles matter. For example, as we have discussed, the precautionary principle is important in the application of pesticides, where the impact of neonicotinoids on bee populations was suspected but not backed by scientific certainty. It created enough time and space for further research to be carried out which confirmed that the ban was justified.
Similarly, the polluter pays principle, which has been used, for example, in the application of the water framework directive, has enabled the Environment Agency to impose fines on water companies found to have polluted rivers and required them to repair the damage and invest in preventive measures for the future.
These principles have existing legal status. For example, in a recent case Friends of the Earth successfully argued that the Northern Ireland Department had failed to consider the precautionary principle when it refused to issue a stop notice to prevent sand extraction in Lough Neagh. I hope that I have pronounced that properly. As a result partly of that argument, the department had to reconsider its position.
These principles of environmental law are not new, nor are they unique to EU law. They are also found in a number of international environmental treaties to which the UK is a signatory. These include the Convention on Biodiversity, the Convention on Climate Change and the Convention on the Law of the Sea. Currently, the UK gives effect to these international obligations through its membership of the EU as these principles are contained in Article 191 of the Treaty on the Functioning of the European Union. This is why, although we have strong support for the concept of enhancing biodiversity as set out in Amendment 67, in the name of my noble friend Lord Judd, in the spirit of transposing rather than refining the legislation we have tried to be true to the existing principles and objectives in Article 191, which do not yet include enhancing biodiversity, although, of course, we wish that they did.
When a similar amendment to Amendment 66 was debated in the Commons, it received strong support. In fact, Dominic Raab MP, who was then the Minister of State responsible for courts and justice, stated:
“Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them”.—[Official Report, Commons, 15/11/17; col. 501.]
So we believe that by restating the principles in the Bill by inserting this proposed coherent new clause, the Government can avoid the ambiguities which result from relying excessively on case law and make good their promise to enhance environmental protection.
More recently, the Government have announced that they plan to publish a new national policy statement setting out the environmental principles which will underpin future policy-making. In theory, we welcome this initiative as it would allow us to build on the existing principles, making them relevant and durable for the longer term—including, of course, the importance of biodiversity. This would be a document for the future. However, we have not seen a draft of it yet; it would then need to be subject to full consultation before becoming a reality. In addition, its legal status would be less clear as it could be changed by government without a parliamentary veto. In the meantime, as the date for leaving Europe grows nearer, it is important that we protect the existing principles that have stood us in good stead for so long. That is what Amendment 66 seeks to do.
The next amendment in my name is Amendment 108. It addresses the serious threat to air quality, which we were rehearsing just a moment ago, by seeking to ensure that the EU ambient air quality directive 2008, the other directives listed and the UK regulations that transpose it remain the law of the land. We know this is an issue of huge public concern with public health implications. That concern is reflected by the courts, which have consistently ruled that the Government are in breach of the ambient air quality directive; and, of course, we saw the latest episode of this in the High Court last week, when the Government’s latest plans were declared unlawful. The Government’s reluctance to comply with the directive is a worrying indication of their likely approach to implementing air quality standards after the UK leaves the EU. Our amendment aims to put certainty into the withdrawal Bill so that existing standards and oversight remain in place.
Currently, the air quality standards regulations are secondary legislation; under the current terms of the Bill, they could be amended or repealed with minimum parliamentary scrutiny. In any event, the regulations will lose much of their effectiveness unless the courts are required to enforce them, in line with the principles established by case law of the Court of Justice of the EU. Anyway, once the UK leaves the EU, the European Commission will have no authority to bring infringement proceedings against the UK. Without this amendment, air quality protection is under threat, either by repeal or amendment—or, more subtly, through the removal of any effective enforcement mechanism. The air quality regulations could cease to be effective on Brexit day. It is therefore vital that the directive and the Air Quality Standards Regulations 2010 are transposed in full, with no weakening amendments. To guarantee public protection in the future, these air quality laws should be given the status of primary legislation, so that future changes require a full Act of Parliament. It is also vital that establishing EU case law applies in the interpretation and enforcement of these laws in the UK.
Finally, as explored in Amendments 112 and 113, there needs to be a robust and independent governance structure that deals with accountability and enforcement. We believe that the package set out in Amendment 108 is vital to delivering effective regulation and enforcement of air quality standards in the future. There are a number of other amendments in this group that explore different aspects of environmental protection and enforcement. We support these amendments, but I will leave those who have tabled them to make their case in more detail. In the meantime, I beg to move Amendment 66.
Amendment 67 (to Amendment 66)
67: After Clause 6, after (4)(b) insert—
“( ) protecting, enhancing and encouraging biodiversity,”
My Lords, I endorse every word that my noble friend said. There is nothing more important, it seems to me, for the qualitative future of the United Kingdom than the ground covered by these amendments. What kind of Britain do we want to leave to our children and grandchildren? Therefore, it seems that we have got tied up over how we can have firm policy in the future if we are to leave the European Union.
My amendment simply sanctions, I hope, what my noble friend said. She referred very strongly to biodiversity because it seems such a crucial issue. It needs very specific and precise attention; it needs to be covered very specifically in the legislation we are considering.
I will not take up a lot of time in Committee because I am sure that everybody in this Chamber understands the urgency of the biodiversity situation, where we are facing challenges on so many fronts. However, I underline that we are considering leaving a situation in which there is a strong position in the European Union. The Joint Nature Conservation Committee put it unequivocally:
“The EU plays a crucial role in developing policy and legislation to protect the environment and meet its objective for sustainable development. The EU has specific targets for biodiversity conservation with legislative protection for key habitats and species”.
The committee makes two other points:
“The EU and global biodiversity targets are partly delivered through a range of legislative measures, which place obligations on Member States to protect biodiversity and the natural environment. The EU and Member States have shared legal competence—shared responsibility—in forming and implementing legislation for the environment”.
The third point I take from what the committee said is that it underlines the great importance of the directives on the conservation of wild birds and on the conservation of natural habitats and wild fauna and flora.
I would like specific reassurances from the Minister on these points. We cannot leave this to be worked out somehow or other in the future. We need to have arrangements in place in the Bill. I emphasise again that the principal amendment in this group has my full support.
My Lords, I will speak to Amendment 317 in this group. Before I do so, I warmly endorse the comments that have already been made on the importance of getting the environmental dimensions right as we leave the European Union, if we have to.
Amendment 317 proposes a new clause on common frameworks for environmental protection, touching on a number of matters that have already been discussed. I hope that the Minister, when responding to this group of amendments, will see Amendment 317 as a constructive proposal for a possible way forward as we have to change our relationships as we move out of Europe. This amendment goes to the very heart of why I am both a Welsh nationalist and a European federalist, and those two attachments are in no way incompatible. I believe that every community should make as many decisions as possible that affect them for themselves, and where they cannot, for practical reasons—where, by their nature, some decisions have to be taken on a broader basis—those communities should have an effective voice in that wider decision-taking process The environment is one such issue.
Environmental protection is a devolved matter. However, while the UK is a European Union member state, most environmental law in the four countries of the UK is guided by common frameworks set at EU level. This amendment would require the four Governments to work together on proposals to establish minimum common environmental objectives and standards. As such, I hope it will appeal to all parts of the House. UK-wide frameworks will be needed to establish areas of common policy across the UK, even in areas of devolved competence. Crucially, this amendment would insist that devolved legislatures are equal stakeholders in the forming of those common policy areas. I will cover the principle of UK-wide frameworks, and my major concerns about Clause 11, when we get to that point of the Bill. Today, I will focus on the substantive relevance of this issue to the environment.
First, I will say a word about why common frameworks are needed. No area of policy will be more affected by the outcome of the common frameworks debate than the environment. According to analysis by the Institute for Government, there are more than 140 distinct policy areas where EU law intersects with devolved powers. The greatest number of these relate to the environment, which is unsurprising given that the EU frameworks have been widely created for environmental policy purposes.
Approximately 80% of environmental laws in the UK, including in the devolved nations, have some basis in EU legislation. Transboundary co-operation and common standards are widely recognised as important for the effective protection of the environment and the prevention of unfair regulatory competition. There are persuasive reasons for seeking to maintain common standards across the four nations of these islands post Brexit. Such frameworks would provide a set of minimum common standards and should be jointly agreed between the UK and devolved Governments. They will be important in a range of areas, such as the conservation of wildlife on land and at sea, environmental assessment and the co-ordination of action to address air and water pollution.
I shall give some examples of common frameworks. EU legislation relating to the natural environment—including the birds and habitats directives—currently helps to underpin effective environmental action by providing minimum common standards for site and species protection across the four nations. This facilitates the creation of a more ecologically coherent network of protected sites than would otherwise be the case. Such an approach will still be needed for the UK outside the EU, helping to ensure that actions in one jurisdiction complement, and do not counteract, conservation outcomes across these islands.
Similarly, the common frameworks provided by EU legislation—relating to the assessment of the likely environmental impacts of plans, programmes and projects—mean that consistent mechanisms are in place for assessing transboundary effects as well as allowing for public participation and transparency in decision-making across the four nations. Co-operation and joint agreement on common frameworks that provide minimum standards and shared high-level objectives are therefore needed.
I now turn to the role of the Joint Ministerial Committee. Most environmental issues are transboundary in nature and represent a shared concern across the four nations. In a welcome sign of progress, the UK and devolved Governments reached an agreement in October 2017, via the Joint Ministerial Committee on EU Negotiations, to develop and agree common frameworks in some of these areas post Brexit—to ensure the effective management of common resources that cross boundaries between the four nations.
For the sake of our shared environment, failure to recognise the importance of agreeing a set of common frameworks in these areas would be of great concern. We urgently need the UK and devolved Governments to commit to working more openly and transparently together, to secure the best possible system of environmental governance across the four nations following the UK’s exit from the EU. This should be informed by a robust assessment of the environmental implications and a transparent process that allows for public consultation and input from stakeholders across the UK.
In conclusion, I ask the Minister to accept that, in the absence of a replacement set of jointly agreed frameworks, environmental co-operation across the four nations would be undermined. Secondly, I ask the Minister to confirm that the views of the JMC will be subject to public consultation and parliamentary scrutiny. Finally, will the Minister provide clarity as to what will be the process with respect to pursuing common frameworks once the JMC analysis is published?
My Lords, I rise to move Amendments 112 and 113, which are in my name and those of the noble Baronesses, Lady Jones of Whitchurch and Lady Byford, and my noble friend Lady Brown of Cambridge.
My Lords, I hate to interrupt my noble friend but he is not moving his amendment now; he is speaking to it. The same applies to the amendment in the name of the noble Lord, Lord Wigley.
I thank my noble friend Lady Mar for that correction. As well as speaking to my amendment, I shall also be supporting Amendments 66 and 108, with which my name is associated and to which the noble Baroness, Lady Jones of Whitchurch, has already spoken.
It was very encouraging to hear the Prime Minister reaffirm in her Mansion House speech on Friday that:
“As we leave the EU we will uphold environmental standards and go further to protect our shared natural heritage”.
As the Chief Medical Officer for England made clear in her annual report published last week, our own health is intimately dependent on the health of our environment. We all recognise that the improvements over past decades in the UK’s environmental standards have been driven primarily by EU laws that cover roughly 80% of environmental legislation in this country, and a key part of that has been enforcement. There is no point in having high aspirations unless you have an effective mechanism to ensure that you deliver. As a member of the European Union, we have been subject to scrutiny and enforcement by the Commission, ultimately through infraction notices. As I pointed out at Second Reading, 46% of the judgments handed down by the European Court of Justice on UK infringements since 2003 related to the environment.
The Government have accepted that after Brexit there will be a governance gap and that therefore a new green watchdog will be required to hold the Government to account on their environmental performance. The purpose of Amendments 112 and 113 is to ensure that this new green watchdog is in place by exit day and that it will mirror as closely as possible the current arrangements that we have as a member of the EU.
When the Energy and Environment Sub-Committee of the EU Select Committee, of which I am a member, took evidence on this, the very strong view was that a new watchdog would be essential. I quote from our report:
“The importance of the role of EU institutions in ensuring effective enforcement of environmental protection and standards, underpinned as it is by the power to take infraction proceedings against the United Kingdom or against any other Member State, cannot be overstated ... The evidence we have heard strongly suggests that an effective and independent domestic enforcement mechanism will be necessary, in order to fill the vacuum left by the European Commission in ensuring the compliance of the Government and public authorities with environmental obligations ... It will be important for any effective domestic enforcement mechanism to have both regular oversight of the Government’s progress towards its environmental objectives, and the ability, through the courts, to sanction non-compliance as necessary”.
I can imagine that in his reply at the end of this debate the Minister will say that we are going out to consultation on a new green watchdog. Indeed, the Secretary of State for Environment, Food and Rural Affairs has already indicated that there will be a consultation on a new statutory body early in 2018. Just checking my clock, “early” is moving quickly beyond us. In the Committee debate in the other place, Dominic Raab said on 15 November 2017 that the consultation was “coming imminently”. If one of my students at Oxford said that her essay would arrive imminently but nearly four months later it had not appeared, it would be a case for disciplinary action. Monsieur Barnier has repeatedly said that the clock is ticking, so can the Minister assure the Committee that the new green watchdog will be in place on a statutory basis by exit day?
Amendments 112 and 113 set out a number of key requirements for the new watchdog. First, as I have already said, it should be in place by exit day. Secondly—this resonates with what the noble Lord, Lord Wigley, has just said—the UK Government and the devolved Administrations should work together to ensure that the watchdog functions apply to the whole of the UK. If there are different watchdogs for the four countries of the UK, they should operate according to the same principles and should be established jointly and in the same timescale. Thirdly, as we heard from the noble Baroness, Lady Jones of Whitchurch, the Government should consult on incorporating EU environmental principles into primary legislation, support decision-making by the watchdog or watchdogs and ensure that the principles inform decision-making more broadly. Fourthly, there should be absolute transparency about the environmental governance functions that are transferred to the new watchdog or watchdogs by creating a publicly available register of functions.
Similar amendments received widespread support in the other place and I hope the Minister will confirm that the Government are listening and serious about supporting the Prime Minister’s ambition for our environment as well as the Chief Medical Officer for England’s ambition for our health.
To add a footnote, this morning in the EU Energy and Environment Sub-Committee, we saw an audit report from the Commission on the UK’s compliance with the landing obligation. This is to prevent fishermen hauling in specimens that are too small for the market; they are supposed to be thrown back. The audit report said:
“The majority of UK-registered vessels are not subject to controls that effectively enforce the landing obligation at sea”.
It also said—this is quite amusing:
“On February 3rd 2016 a Marine Scotland aircraft detected a vessel discarding a large quantity of what appeared to be pelagic fish. However, the camera footage was unable to confirm the species and consequently no infringement proceedings were initiated”.
That underlines the point about external scrutiny of our environmental standards.
In the absence of this much anticipated but, equally, much delayed consultation, what is the Government’s current thinking on the nature of the new green watchdog? Will it, for example, have the power to fine the Governments? If not, what kind of sanctions and powers does the Minister envisage the watchdog having? How will its independence be assured? Are there existing models of watchdogs which might be taken as templates? How will it relate to existing regulators such as the Environment Agency, the Scottish Environmental Protection Agency, Scottish Natural Heritage, Natural England, Natural Resources Wales and the Northern Ireland Environment Agency? I look forward to the Minister’s answers to these and other questions.
My Lords, I support Amendment 66, to which I have added my name; Amendment 67 in the name of the noble Lord, Lord Judd; and Amendment 67A in the name of my noble friend Lady Miller of Chilthorne Domer. These amendments are key to ensuring that the protection of our environmental heritage is enshrined in law in the Bill. This group of amendments is crux to the environmental agenda and must be included in the Bill. I fully support the thorough introduction to the amendment of the noble Baroness, Lady Jones of Whitchurch, and I am grateful to Rescue, the Chartered Institute for Archaeologists, the Environmental Policy Forum and Greener UK for their briefings.
As we all know, on 29 March 2019 key pieces of legislation such as the environmental impact assessment and strategic environmental directives will be transposed into domestic law, with the aim that planning policy will continue to function as currently. However, the Bill does not directly reference some important overarching principles established in the EU treaty, potentially weakening environmental protections which underpin planning-led archaeology. This process is difficult—not least because of the perceived weakness in the Bill, which may prevent its stated ambition of ensuring a smooth transition and avoiding a black hole in the statute book on the day of the UK’s exit next year.
For the Chartered Institute for Archaeologists and the Council for British Archaeology, the key issues are: the de facto weakening of environmental principles enshrined in the European treaty, which are not within the scope of the Bill as proposed; the loss of supranational jurisdiction to provide opportunities to bring legal challenges on environmental principles; the uncertainty over how the Government will use so-called Henry VIII powers to amend technical aspects of EU law when transposed, to ensure that they remain workable in a domestic context; and, the uncertainty over how previously held EU powers—brought back to the UK after Brexit—will be reserved to devolve to Scotland, Northern Ireland and Wales.
In February, during the recess, I went to Cyprus for a holiday. During the week, my husband and I visited the marvellous and numerous archaeological remains on the island, including Aphrodite’s Temple, Aphrodite’s Rock, the Tombs of the Kings and the main archaeological site in Paphos. The Cypriot Government have spent considerable sums of money over many years excavating these sites and preserving the wonderful mosaics uncovered and other historical artefacts. I was struck by the number of non-Cypriot archaeologists who had funded and worked on the sites over the decades to bring the history to life for future generations. Many of these came from the UK.
To be clear on how important archaeological heritage is, we must turn to the survey of adults in England called Taking Part Focus On: Heritage. This was a DCMS survey of 2017 demonstrating both the cultural and economic value that heritage provides to our society and community. Some 74.2% of adults visited a heritage site in 2016-17, with a remarkable 94.2% of adults agreeing that it is important to them that,
“heritage buildings or places are well looked after”.
Another report, Heritage and the Economy 2017, by Historic England—again reporting English statistics—shows that,
“heritage directly contributed £11.9 billion in GVA”,
equivalent to 2% of our national GVA, and that:
“Heritage tourism generated £16.4 billion in spending by domestic and international visitors”.
The Welsh equivalent showed that it contributed 1.6% of GVA and Scotland’s Historic Environment Audit 2016 showed that heritage contributed,
“in excess of £2.3 billion to Scotland’s economy”.
My Lords, I am sorry to interrupt the noble Baroness, but these amendments are about environment, not heritage. Does she have her right speech?
I thank the noble Countess for that intervention, but I believe I have the right speech and I hope she will bear with me until I get to the end.
With this in mind, it is important that the UK retains at least an equivalent provision for environmental protection in domestic legislation and policy to compensate for the loss of EU funding to the historic environment with domestic funding, ensure free movement of skilled and accredited archaeologists between the EU and the UK—
My Lords, I am sorry to interrupt the noble Baroness again, but this is an amendment about the environment. We are asked in Committee to pay our attentions to the particular amendments that we are looking at. I have looked through the list of amendments and none of them applies to architectural heritage. Will the noble Baroness kindly let noble Lords who wish to speak on the environment have their turn?
I am sorry that the noble Countess is frustrated with me trying to link the environment to archaeology. However, Article 191 aims for a “high level” protection of the environment and is based on “preventive action” in which,
“environmental damage should as a priority be rectified at source and that the polluter should pay”.
The principles, including the polluter pays principle, the prevention principle and the precautionary principle, have all been the fundamental base of environmental—
I am sorry, my phone will not switch off.
I am sure that the noble Baroness will realise that the interruption was not a personal allusion to her speech or its content.
I am sure it was not.
These principles have been the fundamental base of environmental protection and the way archaeology is carried out in the UK. The rejection by a very close margin in the other place last November of Amendment 67, which aimed to adopt these principles into UK law with other EU legislation, leaves historical environment protection vulnerable to future changes in British policy. This is not something that the public who visit archaeological sites would welcome.
The weakening of environmental principles enshrined in the environmental treaty has captured the attention of many in the sector in recent weeks and has promoted serious questions about environmental protections after Brexit. A significant amount of time was spent debating the importance of environmental protections and there has been universal acceptance of their value, with cross-party consensus on a need for statutory protections for these principles being evidenced. Discussions are under way towards including a new environmental protection Bill, to which the noble Lord, Lord Krebs, referred, to be brought forward before exit day. Given the legislative timetable and the scope of Bills that the Government hope to bring forward, surely it would be better to enshrine the principles of Amendment 66 in the Bill, rather than leave to chance bringing forward an environmental protection Bill prior to exit day.
The Government’s 25-year environment plan is wide-ranging and encouraging. Those in the natural environment sector have been encouraged by changes in the Government’s stance that have occurred since the new Secretary of State took office. However, the Government’s drive towards streamlined planning has demonstrated how easy it is to introduce provisions that—apparently unwittingly—undermine historical environment protections. We must be vigilant to ensure that damage does not happen by default.
I turn lastly to the impact of the large number of Henry V powers contained in the Bill.
Sorry, Henry VIII powers. They have caused such concern in the environment protection world and elsewhere. The withdrawal Bill’s aim is to convert EU law into UK law wherever practical and appropriate. Clause 7 confers major executive powers on the Government to bring about legal and institutional changes that would normally be the subject of detailed parliamentary debate and scrutiny. These powers are incredibly broad and would be able to achieve anything that could be done through an Act of Parliament, including repealing or amending existing pieces of primary legislation. It is estimated that around 800 to 1,000 statutory instrument are likely to be needed to address deficiencies in retained EU law through these powers. I look forward to this with trepidation.
The Environmental Policy Forum has made a number of extremely valid points, including supporting the House’s Constitution Committee’s recommendations that the Bill should require Ministers to demonstrate good reason for exercising Henry VIII powers and that the sifting committee’s powers be decisive in calling for the affirmative procedure for a statutory instrument as it deems necessary. The EPF also recommends that the Bill should require the Government to establish a new body or bodies to fulfil the roles and functions currently undertaken by the EU institutions to ensure effective governance of environmental law and an appropriate level of independence and authority. The new body should be funded by and directly accountable to the UK Assemblies and Parliaments and, in a similar way, to the National Audit Office.
It is vital that the UK and devolved Governments work together throughout the passage of the Bill to ensure that common frameworks can be established to set minimum environmental standards across the UK at or above current EU standards. This should allow each country to set higher standards should they wish to do so. This process should be jointly initiated to allow for genuine shared ownership. I fully support all the amendments in this group and I hope that the Minister—although probably somewhat weary of the Committee’s deliberations—has his listening hat on.
My Lords, I rise to be helpful to the Minister because I think Amendment 66, to which I have added my name, merely ensures that we do what the Government have said they want to do. I speak as chairman of the Committee on Climate Change because this amendment, as the noble Baroness mentioned, refers to international obligations beyond the European Union, one of which is the Convention on Climate Change.
I am particularly interested in this because for four years I was Secretary of State for the Environment at a time when the British did not have a great reputation for environmental action. I have to say to the Committee that I found the presence of EU law, particularly on bathing waters and water quality, extremely helpful. It was not always easy to convince my colleagues that we really did have less good drinking water than much of the rest of the European Union. They rather took my mother’s view, which was that the reason that people had bottled water in France was because their ordinary water was unacceptable. There was a general view, much promoted in the Daily Telegraph, that there was no need for improvement. I have to say that there was need. There was even more need, as Surfers Against Sewage made clear, to do something about our appalling bathing water standards. We were, after all, in much of the country pouring unreformed ordure—I do try very hard to use phrases that the Committee will not object to—into the sea. We were able to change that, not, I may say, without very considerable difficulty and arguments about the price and cost of doing it. It was within a context of EU law, and not just precise pieces of law but the context in which we accepted certain standards and values to which we could refer when it came to making our own legislation.
I have looked at this amendment very carefully, and I cannot find anything in it to which the Government could possibly object. If my noble friend is busy looking it up at the moment, no doubt he may find something, but I do not see anything to which the Government could object. There is nothing here which does not pass from EU law into our law, and that, after all, is the purpose of the withdrawal Bill. My noble friend has sometimes been somewhat sharp with me in suggesting that I am asking for something more, so I have not put my name to those things which have asked for something more—mind you, I might well come back and ask for that—but this amendment asks for nothing more than that which has been promised by the Prime Minister, by the Secretary of State for Defra and by other Ministers: namely, that our standards would be at least those of the European Union were we to leave the EU. This merely puts down that contention.
Frankly, I think that my noble friend, if he were to say that we cannot have this amendment—I very much hope that he is not going to say that—has to explain, first, what in it is additional to the mere passing of the law from the EU into our national law. Secondly, he must explain why it is unacceptable to the Government for this House to repeat what the Government have themselves said: not an unreasonable thing, I think, for it to do.
I said earlier that I rose to be helpful, and I meant it. There is very considerable concern throughout the country, not just from environmental organisations but from civic society generally, that the Government will not be bound in the future, were we to leave the European Union, in the same way as they are bound now within the European Union. There is widespread concern, felt not just by those who are opposed to our leaving the EU but also by people who voted to leave because they were promised that leaving would not make a difference, in any sense, to these things. I want to be helpful because, if we do not do this, very large numbers of people will vote with their feet because they will not trust any Government. I do not trust any Government on these issues. I do not just mean that I do not trust this Government: I have not trusted previous Governments. I have fought with all of them one way or another on these principles. That is why this amendment is so important.
The vital issue is that the environment needs to have a framework within which people can have confidence that their interests will in fact be met. In the past, we have had the framework of the European Union. The Government say we can have just as good a framework outside the European Union—well, this is the framework, and there is no reason why they should refuse it.
In the Pope’s encyclical Laudato Si’, he makes the absolutely fascinating statement that climate change is in fact to be seen as a symptom of the way human beings have dealt with each other and the planet upon which we live. He goes on to express his desire that we should learn again how we should behave not only to each other but also to the world. The very best series of explanations of how we should behave are to be found in this amendment. They have been honed and argued over the years in the European Union, and I spent a good number of years of my life debating them both in the Environment Council and in the Agriculture Council.
Before the noble Lord, Lord Deben, finishes, does he agree that one essential EU measure is the urban wastewater directive of 1991, without which we would not have built the Thames super-sewer? I am less reticent than the noble Lord because, on a weekly basis, untreated raw sewage flows into the Thames right outside this House. We are already nearly two decades overdue in implementing that directive, and without EU law we would not be doing so at all.
I am very glad to acknowledge the noble Baroness’s point, but I have tried hard not to stray into other things because I want the Minister to accept this amendment. If he does not, I have a fundamental question to ask him, because I do not think the Government are serious about what they have promised. If they are, they cannot oppose this amendment, and if they do not oppose it, why on earth can they not accept it? If the Minister tells me that we do not need it because of this, that and the other, he will have to go through each item and explain how it is totally passed into our law without this amendment. He will also have to explain it in such a way that it can be understood by all those people outside this House who are worried and concerned about this change from our membership of the EU.
Will my noble friend explain something to me? He has just said “passed into our law”, but there is confusion, particularly in relation to what the noble Baroness, Lady Ludford, said, about environmental law. This is surely about environmental principles, which are really quite different. They are, on the whole, aspirations, with which many of us may agree, but they are not part of the legislation as such.
I fear that my noble friend is not right on that, for two reasons. First, all environmental law in the European Union has been intimately connected with the principles upon which it is based. Indeed, you cannot understand the law unless you understand the principles. That has always been the situation. All we are saying is: let us make our law understandable by the principles to which we have assented and to which, we are told, the present Government wish to continue to assent. The distinction between principles and law is not correct in this case. Secondly, even if he were right—and I am not sure that he and I would always agree on the same aspirations as far as the law is concerned—it is very peculiar for the Government, having said that this is what they want, not to be prepared to put it into the law, because these are the very words to which the Prime Minister and other Ministers have referred. This is a distinction without a difference in this case.
Since my noble friend has raised it, I say that when we voted on these laws—some of which I did as a Minister—we did so on the whole package, which was the principles as adumbrated in the law itself. It is not possible to take the legal bits out without the principles, as he would suggest, because it is the principles that enable one to interpret what the law says. That has always been accepted. The Government, in their statements, certainly gave every impression that that was what they wanted to do. I very much hope that whatever my noble friend says about additionality—
I will to try to help the noble Lord out. It is not just what the Government say; it is what is in the Bill. Clause 6(3) makes it absolutely clear that retained EU law must be interpreted,
“in accordance with … retained general principles of EU law”.
The Bill recognises it.
I am so pleased to have been supported by the noble Lord. I was rather afraid that he was going to find something that I had got wrong in the law and I would not like to argue with him, although I have done on occasions, as he knows, because I do not like lawyers to be left to themselves. But he has, with legal elegance, expressed what seems so obvious for anybody who has dealt with European law.
I say to my noble friend is that one of the problems we all have is that those of us who have worked in the European Union, who have argued these laws line by line, and who have worked with our neighbours to do this wonderful thing of bringing countries together to have common laws, encounter the constant difficulty that those who do not like the European Union do not understand the way it is done. Very often, the reason they are opposed to it is because they have never understood the brilliance of the mechanisms that we have there. We may lose them—I say “may”—but we do not want to lose the environmental protection that they have given us.
The last time I checked, the environmental directorate of the EU had taken 34 cases against the UK Government, of which it had won 30. I did not want to interrupt the noble Lord, who was an absolutely first-class Environment Secretary. I know that because later I worked in planning with John Prescott, as he was then, and we were always referring back to the good work that he had done.
I would have asked the noble Lord: when he was Environment Secretary, how often was he assisted, in his dealings with the Treasury in delivering on our legal obligations, by the threat of infraction? The power to fine the Government that the Commission has does not exist anywhere in the UK. The Supreme Court does not fine the Government. I discovered, when I was at MAFF for two years, Defra for two years and the Northern Ireland environment office for a year, that the threat of infraction was a powerful sanction to the Treasury. When you were arguing about the money to do something—which we were required to do anyway but resources were short—the case to the Treasury was, “Enable us to do this, we will do a deal with our budget and everything else, because paying a fine is an absolute waste of public resources”, and that is what happened.
Most of our environmental protection today is as a result of being in the EU. Ministers wanting to deliver have been helped to do so by the threat of infraction. So the thing that is missing from all this—although the noble Lord, Lord Krebs, touched on it—is the governance and delivery of the sanction. If it is not delivered, what is the sanction? If it is not money, it will not work. The evidence is there. It has to be money. It cannot be the chair or board of whatever is set up saying to the Minister, “We don’t like what you’re doing. You’ve got to do something different”. The first time they use the nuclear option, they will not be on the board the following year unless their independence is locked in solid in legislation. The threat of a sanction of money is pretty important. Without that, the principles cannot be delivered.
I do not want to speak for too long but I want to add to something that the noble Lord, Lord Krebs, raised in the Select Committee this morning. It is the fastest way of getting something from a Select Committee to the Floor of the House that we have discovered. It is a relevant issue because again it is about an external body auditing what the UK is supposed to deliver. In this case, it is the audit report delivered in June 2017 on the landing obligations of the UK. This issue is pretty fundamental. The report stated said that landing obligations were not being respected by UK fisherman. I massively support UK fisherman, by the way, who are in a very dangerous occupation—but all through the audit report the EU auditors found that we were not delivering. Rates of non-compliance were high. There were low reporting rates. We export 80% of what we catch and we import 80% of what we eat. If we do not continue to deliver EU standards, whether landing obligations or something else, there is always now the economic threat of the fact that we export 80% of what we catch. Sanctions could be imposed, so we have to deliver.
My question follows what the noble Lord, Lord Krebs, said. When we have left the EU, who is going to do the audit? It quite clearly cannot be left to the UK Government, because this independent audit has discovered that the four countries have been failing anyway. It is crucial between England and Scotland—because most of the fishing fleet is based in Scotland—that we comply. Who is going to perform that function? Will it be an independent body with teeth or are the UK Government saying that we will carry on as we did before? Carrying on as we did before is a failure, and the EU might well use economic sanctions against us if we are not delivering. So there is the threat. The Government are well aware of this. This is no surprise to them, because it has been in the reports of EU Committees of this House—I think about 25 have now been delivered. Nothing new has come out in recent discussions that has not been in those reports. I wonder whether the Government have been reading them.
I shall follow the noble Lord, Lord Rooker, because I put my name to Amendment 112, which calls on the Government to look at the independent body. When I spoke at Second Reading I said that it was essential that the proposed new body should have teeth, and I am very grateful to the noble Lord, Lord Rooker, for reinforcing that point. The questions that I posed then—I shall not repeat the excellent contribution of the noble Lord, Lord Krebs, because that would test the temper of the Committee to say the least—were: who staffs it? Who pays for it? Who interprets it? What relationship does it have with other agencies? It is key that the new independent body that we are promised should be set up in time, and Clause 112 sets down a timescale. It may be that the Minister is not able to accept the amendment as it stands, but it is hugely important that we realise the strength of feeling about getting this body in place in time so that the laws will be regulated in the way that they have been traditionally—so I totally accept what the noble Lord, Lord Rooker, said.
The noble Baroness, Lady Jones, mentioned the 25-year environment plan earlier. I hope I misunderstood her, because she is very good on her brief, but I think she indicated that there was no 25-year environment plan. I thought it was out: I have read it and was looking forward to responding to it. The Government are looking to go out to consultation on it. Is the Minister able to give the Committee any direction on the timing of that? Will it be a UK consultation or an England one with the devolved assemblies looking at it from their point of view as well, and will the new body reflect this? It is hugely important that it is a UK one because that is the law that, hopefully, we are taking over from the EU in the way it is now.
On the question of feedback on the environment side, there will be very great differences, I suspect, between how England responds and how Scotland, particularly, and Northern Ireland and maybe Wales do. There are some very real and slightly wider issues here. I think it comes to the amendment to which I added my name because I was clearly very unhappy that we had no timetable. We have no idea whether the body will have teeth or who will impose it—and, importantly for me, who will pay for it and how independent the person paying for it will be. These are questions that we need answered today. I have others, but that is enough from me.
I will just clarify that I did not mention the 25-year environment plan. I referred to a new national policy statement setting out environmental principles, which I think is a different document. Otherwise, I agree with everything the noble Baroness said.
My Lords, I share the anxiety of the noble Baroness, Lady Byford, about the timescales, particularly in respect of the consultation on EU environment principles and the establishment of a new independent environmental watchdog. A large amount of environmentally related legislation has to be got through over the next few months or a year: a fisheries Bill, an agriculture Bill and a huge wall of statutory instruments on environmental law are coming towards us. There are something in excess of 800 instruments in total, the last I heard, with a considerable number of those being environmental. I am anxious, along with many other noble Lords, about whether there is air time for this consultation before the legislation that needs to follow to establish the new watchdog. I would press the Minister to tell us about the plans for the consultation.
I also share the anxiety of the noble Lord, Lord Rooker, about whether there will be real welly behind the regulator. I was chief executive of the Environment Agency, the environmental regulator, which had to help negotiate the urban wastewater treatment directive infraction proceedings that produced the Thames tideway. In spite of wanting and willing there to be an example elsewhere in the world of a body established by a Government that is capable of fining its own Government —and hence its own establishing power—I have not been able to find one. I hope, however, that Ministers will look assiduously at producing that result.
In the spirit of the noble Lord, Lord Deben, with the great hope that I am not going to be his unrefined ordure, I will also briefly help the Committee with another couple of examples about why the environmental principles are important. When I was chairman of English Nature, the debate about genetically modified crops was raging. There was huge public concern and the Government were in an impossible position, with the multinational American-based companies pressing very hard to have GM crops introduced. There was huge alarm about the release of triffid-like plants resistant to all known weed-killers and capable of killing insects stone dead at a distance of 100 paces. But the reality is that had there been an uncontrollable release of GM crops, it would have been more than unfortunate for biodiversity, agriculture and food security.
Let me give the noble Baroness the chance to get her voice back by intervening on what she knows is one of my favourite subjects. Would she not accept that, many years down the line, we now know, because of the meta-analysis by Göttingen University, among other research,