My Lords, in moving Amendment 68 I will speak to Amendments 69 and 69A in the name of the noble Baroness, Lady Chapman. I will take a little while; I know we want to make progress today, but these amendments are on legally very significant issues in relation to Clauses 3 to 5. Last Thursday, we discussed the fact that, unlike the sunset under Clause 1, there is no saving provision for Clauses 3 to 5, such as appears in Clauses 1(2). We moved an amendment to try to change that, and perhaps the Government will accept it.
I heard a Conservative MP on “Any Questions?” this weekend assert that Brexit meant bringing democracy back. I think that noble Lords across the Committee who have taken part in the four days of proceedings so far on the Bill would agree that it does not bring democracy back. Instead, it reinforces the executive diktat that, unfortunately, we have become rather used to.
The effect of these amendments, beginning with Amendment 68, would be to require
“Ministers to analyse, and to explain their analysis of, the effect of the removal of retained EU law rights, the principle of supremacy of EU law, and of the general principles”
of EU law. I presume that the Government have conducted such an analysis before bringing into force such wide-ranging changes. In the words of the Bar Council,
“it would be extraordinarily irresponsible were that not done”.
We would like to see a sharing of that analysis; it needs to
“be consulted on, made public, and put before Parliament. The new clause … gives Parliament the chance, in the light of such an analysis, to prevent the bringing into force of those sections or to propose amendments”.
The fact is that the effect and scope of Clauses 3 to 5 are extremely unclear.
On legal certainty, the principles of the interpretation of EU law are ones with which UK lawyers and courts are, by now, very familiar; they are well settled as principles of the interpretation of UK statues as well. Removing those principles is likely to generate uncertainty and unintended consequences, in particular because quite a lot of those topics will have been the subject of considerable EU case law and removing them will create instability. The Government have not explained what the consequences of the removal of those principles will be on the various rules and protections concerned. I am very grateful to the Bar Council for its briefing, and, again, in its words:
“It is not a good idea to legislate when you have no idea what the consequence of that legislation will be.”
However, I am afraid that that is where we seem to be.
Under these clauses, there will be a retrospective effect to alter the position of domestic legislation, which could not have been foreseen by the domestic legislator at the time. That appears to be a very dubious thing to do. The rationale for retaining, for instance, the principle of the supremacy of EU law—a much misunderstood term; lawyers describe it better as a hierarchical rule—is legal certainty, because individuals and businesses will have taken decisions, sometimes far-reaching and involving significant investment, based on the law as it was. Removing that principle to give priority to any subsequent domestic legislation would mean that it would be impossible to say whether the consequence of removing the principle in any particular case would reduce the clarity of the law or change its effect. Even if it does not do those things, it will at least reduce certainty and lead to unpredicted—and perhaps undesirable or unjust—consequences.
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Our Constitution Committee stressed that the abolition of general principles of EU law may give rise to inconsistency, with some legal provisions interpreted in line with general principles of EU law and others in line with domestic law. How on earth anybody is going to find their way through that maze we will have to wait and see, but I hope not. If the Committee was to favour Amendment 68 or something like it, perhaps in the analysis that the amendment calls for it would become clearer what the relationship is between Clauses 3, 4 and 5 and Clause 7, which we will come on to later. Clause 7 requires courts to interpret retained EU case law in deciding whether to depart from it. However, if the underpinning of retained rights, principles and supremacy of EU law has been pulled away, what is there left to assist that interpretation?
When he replies, can the Minister explain the effect of Clause 22(6)? It reads:
“Sections 3, 4 and 5”—
the clauses we are discussing at the moment—
“do not apply in relation to anything”,
and I emphasise “anything”,
“occurring before the end of 2023.”
Perhaps he could explain what “anything” covers. Any government analysis, as called for in Amendment 68, needs to explain the effect of Clause 22(6).
These Benches have also tabled Amendment 69A, which focuses especially on the crucial topic of legal certainly, whereas Amendment 68 covers a range of effects in its call for reasoned analysis. Amendment 69A would require the Government to request a report from the Law Commission, which would then be laid before Parliament. Parliament would be called on to approve a resolution before any of Clauses 3, 4 and 5 came into effect.
I will quote from the briefing on the Bill from the Employment Lawyers Association—I am grateful to it and to everybody else who has briefed us:
“The Bill will create, on 1 January 2024, a raft of EU employment rights whose application, scope and meaning is unclear. Lawyers will no longer be able reasonably accurately to predict the effect of workers’ rights or employers’ obligations. Businesses will no longer be able reasonably accurately to predict their obligations. Workers will be uncertain as to the scope, meaning, application or entitlement to their working rights”.
It continues, I think with reason, that:
“Fertile ground for litigation will be seeded—litigation begets the triplets of cost, delay and uncertainty: that deters investment.”
I think even the lawyers must be quaking at this prospect of litigation.
The Employment Lawyers Association says we face:
“hundreds of domestic cases that are based on European principles … erased from the record and the edifice of 50 years of incremental understanding of the regulations … torn down and replaced by a void.”
There is no phasing out of the old as new decisions supersede them. There is no transition period. There is no gradual introduction of new principles. Until new decisions emerge—over the next few years, decades or 50 years—there will be a vacuum which will be filled by litigation and appeals. I suspect that, given current delays, the employment tribunal system is going to get rapidly clogged up.
Finally, I draw attention to one of the principles that is proposed to be lost: the precautionary principle. This has potentially far-reaching consequences for a broad sweep of environmental law, including nature protection, animal health, water quality and pesticide regulation. We have discussed the environment and we are going to be discussing environmental issues again, but the general principles are interpretative principles. Even if regulations that embed a precautionary approach are saved, such as the habitats regulations, as those regulations are currently interpreted in accordance with the precautionary principle, if that principle is swept aside we will be left with no clear idea of the regulations’ meaning. No doubt the Minister is going to refer me to Section 17 of the Environment Act, which lists the five former EU environmental principles, but the problem is that there is a difference between that and the EU principles. The Environment Act merely requires policymakers to have “due regard” to a policy statement on environmental principles and it does not have the same impact as the current principles under EU law.
I believe that these are important amendments. The Government need to explain to us what the legal consequences will be and to seek, if they can, to reassure us that there is not going to be a legal mess which somebody—the courts, lawyers and all of us—will have to try to sort out. In their enthusiasm for the
provisions of the Bill the Government seem to have cast aside, as we have said constantly in the four days of proceedings, the principles of good governance, good policy-making, consultation and reasoned analysis. That is what these amendments call for.