My Lords, Clause 4 contains many ambiguities, some of which have been helpfully pointed out by the noble Lord, Lord Krebs, and the noble Baroness, Lady Brown. The clause domesticates all directly effective treaty provisions whether or not they will be capable of meaningful application following exit. Several problems arise from that which the Government are aware of and say they will address. However, I am not entirely comfortable with the sort of formula the helpful Solicitor-General brought to the committee when he came to see us. He said:
“‘The Government will consider how these rights can be given effect to in the context of our exit from the EU on a case-by-case basis ahead of exit day’”.
There is an awful lot of work to be done before exit day and I look forward to receiving this case-by-case analysis at some point.
The Constitution Committee suggested amendments to deal with some of the ambiguities, but it could not deal with all of them for the reason we set out in paragraph 37. Reciprocal rights are,
“inextricably linked to the legal relationship between the UK and the EU post-exit. The full impact of Brexit upon reciprocal rights will not be known until the UK’s future relationship with the EU is determined. This highlights a broader issue that the uncertain environment in which the Bill is being considered makes it difficult fully to assess its likely consequences, including its constitutional implications, at the time of its passage”.
That is putting it gently, but that is the difficult situation in which we are operating.
I turn specifically to the effect of Amendment 26. I remain puzzled by not just the ambiguity but the conflicting language used in the clause. The noble Lord, Lord Pannick, elucidated this at the start of this short debate by citing the phrase,
“not of a kind recognised by the European Court or any court or tribunal in the UK in a case decided before exit day”.
The committee responded by saying:
“It is unclear whether this means that there must be a judgment on the specific provision of the particular directive, holding that it has direct effect, or whether it simply requires that the provision in question satisfies the criteria that would be applied if the matter were to be judicially considered”.
That is a pretty hypothetical basis on which to defend a right. We said:
“The language of clause 4 supports the latter interpretation, but the explanatory notes appear to endorse the former”.
A great deal of paper is being shuffled around at the moment because it may be that the ambiguity is being resolved as I speak, although I suspect that what is really being looked at is how far we can get tonight in the course of these proceedings. However, we need some help in getting the Government’s view on this, but that might not be sufficient because we also need to ensure that the Bill is tightened up in this respect.