European Union (Withdrawal) Bill — House of Lords, 2018-03-21
Topic: International Affairs
Richard Keen (Conservative, Centre-right): My Lords, as has been noted, this is in a sense a continuation of a lengthy debate we had in Committee in response to, I think, Amendment 33, tabled by the noble Lord, Lord Pannick. I will not repeat all that was said from the Dispatch Box in the context of that debate but I hope the noble Lord, Lord Bassam, will not think that, because I am taking this amendment relatively briefly, I am taking it relatively lightly. Indications were given at the time of that earlier debate as to our consideration of this matter EU law is of course comprised of many things, including domestic primary and secondary legislation, converted EU regulations, decisions and EU legislative and non-legislative provisions. Due to the breadth of retained EU law, it is therefore unique in its nature. That is why the Government deliberately chose to tread carefully and not simply to assign this new category of law, retained EU law, to a single category of domestic legislation. Treating all retained EU law as primary legislation may be possible but such a broad approach will inevitably raise unforeseen and uncertain consequences—the very thing we want to avoid. If one looks at an EU provision that deals with the content of a particular chemical and those contents are to change, are we to address that only by way of primary legislation? I suspect that if that were the case, we would be sitting much later than we have in the last few days of this Committee Again, treating it all as secondary legislation may also pose considerable difficulties because of the interaction between retained EU law and other domestic legislation which is in the form of primary legislation. This is not a straightforward exercise, which is why it was thought fit to identify certain areas where it should be treated as primary—for example, in the context of human rights—and other areas where Ministers would be allowed the opportunity to consider how best to deal with the issue, albeit as cases arise I notice that there is a concern about how the matter is to be approached but it is not one that identifies a universally approved approach. I noted what my noble and learned friend Lord Mackay said about the treatment of retained EU law in the context of a qualification with regard to what is brought into domestic law by way of Clause 2, for example, and what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said about Professor Paul Craig’s solution, which we discussed previously in Committee in reference to Amendment 33 We have taken that on board and we believe that at present, the position we have adopted is the correct one for achieving maximum legal certainty after exit day and for ensuring the most appropriate outcome across the domestic statute book. Equally, we recognise the need to look at alternatives in the context of, for example, Professor Paul Craig’s proposals, and perhaps to look at it in a different context altogether: that of outcomes rather than, in the first instance, identification of whether it is primary or secondary. That is what we indicated we would do when this matter came up for debate before in Committee, and what we are doing. In that context, I hope the noble Lord will see fit to withdraw his amendment at this time.