European Union (Withdrawal) Bill — House of Lords, 2018-03-05
Topic: Environment
Richard Keen (Conservative, Centre-right): First, with respect to the noble Baroness, I do not accept that the way in which environmental law has been received and enforced in our domestic legislation has been random. We differ at the outset to that extent. Of course, various propositions have been put forward, one of which is to give the status of primary legislation to all retained EU law—but that would raise difficulties that I will come on to address. The categorisation below that can be carried out: indeed, the noble Baroness tried to set out for Amendment 32A a hierarchy that could be employed in that context. But I do not consider that environmental law stands out in the way that the noble Baroness suggests Our concern is that, as I mentioned, a one-size-fits-all approach will not really work. Again, I quote from the Bingham Centre’s report, which stated: "We consider that the Rule of Law objectives of legal continuity and certainty are better served by the approach taken by the Government in the Bill. The principle of supremacy is well understood and its future role is very limited, being confined to the relationship between retained EU law and pre-exit UK law. Treating all retained EU law as primary legislation enacted on exit day, on the other hand, will increase legal uncertainty because it changes the settled approach and leaves unclear whether the interpretive obligation, to interpret pre-exit UK law so as to be compatible with retained EU law, continues to apply" EU law that is being converted into domestic legislation under this clause covers both a vast range of different policy areas and different types of EU law, from regulations and directives applying to agriculture and farming to detailed and technical pieces of tertiary legislation, such as the list of contents for a dye or chemical. At the end of the day, treating all of that as primary legislation would present, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, indicated, a quite enormous task for Parliament if it is going to legislate to amend any of that retained EU law. How many Acts of Parliament would we have to contemplate putting through this House to wrestle with that demanding position? It really would be formidable. Because this legislation will come on to our domestic statute book in a unique way, it will not already have been scrutinised and approved by this Parliament—so we would be bringing in this enormous body of law and treating it as primary legislation when nobody in this Parliament had actually examined it The breadth of this body of law, in the case of EU law being converted, is unique in its nature, which is why the Government have deliberately chosen to tread rather carefully and not simply assign a single status to that retained law in domestic legislation. While assigning a single status for all purposes to all retained EU law may be theoretically possible, it would have the most difficult consequences and might lead ultimately to a situation in which we had to extend the use of Henry VIII powers beyond any reasonable limit normally contemplated in the context of provisions of this kind Beyond that practical consideration, there is a more fundamental concern about the constitutional appropriateness of what has been proposed. Domestic primary legislation is less vulnerable to subsequent amendment and is less vulnerable to challenge in the courts for a very good reason—because, as I said, it has undergone scrutiny by both Houses of Parliament, which means that there can be no doubt about Parliament’s intentions so far as that primary legislation is concerned. That would not apply to retained EU law While we are spending considerable time scrutinising this Bill, we are not able to scrutinise the law it is converting. Some of that law is itself the EU’s own subsidiary legislation, which has not been subject to comparable scrutiny anywhere. The noble Baroness observed on an earlier occasion that the European Parliament had had the opportunity to scrutinise much of this. It has had the opportunity to scrutinise some of it, but scant scrutiny—if any—of the subsidiary legislation has actually occurred in the European Parliament. By contrast, our proposed approach has been to deal with the status of converted law for certain specified purposes, such as that alluded to by the noble Lord, Lord Pannick: that is, paragraph 19 of Schedule 8 in the context of the Human Rights Act and rights arising from there Of course I understand the concerns put forward by the Constitution Committee and noble Lords about the consequences of the case-by-case approach that we are taking. I do not dismiss them lightly and I do not say that the Bill is a perfect solution to the issue that we have to address. As I indicated on day three of Committee, there is some scope for considering how we can take this forward. Reference has already been made to the work of Professor Paul Craig and the alternative model of categorisation that he proposed in his article of 26 February. That is something that we are looking at—albeit, as the noble Lord, Lord Adonis, anticipated, that it might involve a considerable amount of work. But if that can be an appropriate and effective categorisation, rather like that of the noble Baroness, it is something that we are willing to look at Again, I ask the Committee not to dismiss lightly the potential ramifications of treating all this law as having the status of primary legislation just to exclude the concept of supremacy from the operation of Clause 5. That would raise formidable problems for us and we do not see it as an effective way forward for the Bill. But, as I indicated previously, we are looking at the mechanisms employed here, and a mechanism that avoids actually applying the doctrine of supremacy may find greater traction as a way forward if we can come up with a suitable categorisation for retained EU law, rather than a blanket categorisation of primary legislation. I invite the noble Lord to withdraw his amendment.