My Lords, I agree very much with what the noble Lord, Lord Pannick, has said about the charter in his Amendment 15 and I agree with him in Amendment 19, to which I have added my name. I want to refer to Amendment 18, which deals with yet another area of legal uncertainty that will be created by this Bill. Paragraph 1 of Schedule 1 to the Bill asserts that there will be,
“no right in domestic law on or after exit day to challenge any retained EU law on the basis that, immediately before exit day, an EU instrument was invalid”.
That was also quoted by the noble Lord a moment ago. However, having snatched away a citizen’s right to seek redress through the courts, paragraph 1(2)(b) of the same schedule states that in some circumstances the Executive might allow you into the court with your challenge. A Minister can make regulations to provide for that, but on what criteria and when will the regulations be made? My attempts to get clarification have yielded incomplete results. In a Written Answer to my Question of 29 March, the noble Lord, Lord Callanan, referred to the fact that individuals and businesses may be individually affected by an EU instrument—indeed so. He added:
“This power could be used to enable a right of challenge in domestic law to the validity of retained EU law in such circumstances”.
How will those circumstances be defined? I am particularly concerned about the repeated reference to “individual circumstances”. Is the Executive to decide on a case-by-case basis which individual cases merit a judicial hearing and make regulations specific to individual cases? That is a quite extraordinary thought. Are Ministers to choose who is allowed the key to the courtroom?
There is a possibility that regulations which deal narrowly with an individual case could be challenged by another individual or organisation with a similar case but which did not fall within the regulation. It would be claimed that the regulation was hybrid. This House provides special procedures to protect and give a fair hearing to parties affected by hybridity in statutory instruments—parties who want to argue that they are being dealt with in a different way from others who are in the same circumstances as they are. However, these protections are removed by a provision in paragraph 23 of Schedule 7, which states that hybrid regulations under the Bill are to be treated as if they were not hybrid and that their hybridity is to be ignored.
The upshot of all this is yet more legal uncertainty. Companies and individuals claiming to be adversely affected by a retained EU law whose validity was open to challenge will not be able to take that challenge to court unless they are lucky enough to be covered by exempting regulations, but they cannot know that in advance because the regulations will not have been made or even published in draft. The Government made it clear in the same Answer to which I referred earlier that they have no plans to publish any such regulations at this stage. Parties will have no way of knowing which areas or issues might be exempted. It is not even clear whether there will be any regulations, since the Government could decide not to use this purely permissive power at all.
Given that, absent any criteria in the Bill for the scope of these regulations, I do not believe that the power to make them should remain in its present form. I would rather we solved this problem by permitting legal challenge, thus providing potential revenue for abused rights. If the general prohibitions on legal challenge were to be retained, which I would regret, Ministers should come back at Third Reading with an amendment that properly defines or provides the criteria for their potential scope so that they are not wholly subjective and Executive-controlled. If, however, noble Lords agree to Amendment 15 and are similarly disposed to agree to Amendment 19, also tabled by the noble Lord, Lord Pannick, to which I have added my name, I would suggest that this amendment becomes a necessary consequential amendment. With the scope for appropriate legal challenge reinstated, there will be no reason for the Executive to have powers to remove the prohibition in selective circumstances of their own choosing.
3.30 pm