My Lords, the noble Lord’s amendment endeavours to provide a global answer to the question of whether retained direct EU legislation should have the status of primary or subordinate legislation—if and to the extent that is relevant. I am grateful to him for the engagement he has had with the Government throughout the passage of this Bill, especially in recent days. Let me say to the House that the Government understand that there is a desire that these new forms of law should be assigned a particular status. We are sympathetic to that view, which stems from a desire for clarity in the law. Of course, clarity is indeed highly desirable. The Government have gone to great lengths to try to make provision in the Bill for how retained direct EU law should be treated. The Bill addresses treatment of retained EU law by the Human Rights Act, the Interpretation Act and rules of evidence, among other things. That is an important part of this Bill. Our provisions on the principle of supremacy deal with the situation where pre-exit domestic law conflicts with retained direct EU law; our amendments on Report deal with amendability; and other provisions with validity challenges where the aim of the Bill is continuity.
On this specific issue of challenges to retained direct EU law, paragraph 1(1) of Schedule 1 states that:
“There is no right in domestic law on or after exit day to challenge … on the basis that, immediately before exit day, an EU instrument was invalid”.
As retained direct EU law under the Bill will owe its incorporation into domestic law to primary legislation, it will not be possible to challenge its validity using domestic public law principles. However, as is currently the case, any post-exit Act by a public authority under direct EU law will be susceptible to judicial review, and the Bill does not restrict the use of other routes of challenges, such as breach of statutory duty or challenges under the Human Rights Act. But the crux of our approach and our concerns with the noble Lord’s
amendment is that there is no such thing in domestic law as the “status of primary legislation” or the “status of subordinate legislation”. There are many different types of both primary and subordinate legislation. For each of those types of law, there are many different rules about how they are to be treated for different purposes. Whatever we took as our model for how we wished to deal with retained EU law and how it should be treated, we would need to consider each of those different purposes and ask whether that model truly worked in each context.
My submission today is that while the pursuit of a simple rule is laudable, in practice the clarity it would purport to give would be illusory. It would raise more questions than it answered and, ultimately, it would be bad for legal certainty. I will, if I may, seek to illustrate what I mean—the noble Lord himself touched upon this. If we take the status of, for example, primary legislation, we are aware of at least five different types of primary legislation: Acts of this Parliament, Acts of the Scottish Parliament, Acts of the Welsh Assembly, Acts of the Northern Ireland Assembly and, indeed, Northern Ireland Orders in Council. Each is treated differently for different purposes; that is to say, it has a different “status”. Furthermore, to the extent that provision is made that provides that retained direct EU legislation is to be treated in the same way as an Act of, for example, the Scottish Parliament, as a matter of course the Government would want to engage with the devolved Administrations before making such a provision.
The so-called status of a particular type of legislation is not encapsulated in a single line or by reference to any simple rule. To take just one example, when this Parliament created the concept of an Act of the Scottish Parliament, it set out in the Scotland Act a number of rules, including how such Acts are made and in what circumstances and with what consequences they can be challenged. Nowhere did it try to define those rules by simply saying that Acts of the Scottish Parliament should have the status of any other existing form of legislation. What was right then is, I submit, right now. Once again, we are creating a new category of law. It needs its own rules, rather than being forced into an existing and ill-fitting set of rules made for another type of legislation.
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The situation is, I fear, even more complex for subordinate legislation. To say that retained direct minor EU legislation is subordinate legislation is also to say that it is like Orders in Council, the rules of the Bank of England, by-laws and any number of other forms of subordinate legislation. This amendment says that retained direct minor EU legislation is like all or some of these. Each of these forms of legislation—primary or subordinate—has its own status. Such a concept only exists in our law as the totality of how other statutes and the common law set it out. There is no place I can go to be told the so-called status of an Act of this Parliament, let alone of primary or subordinate legislation more generally.
This Bill is creating several new types of legislation and needs to provide for how that legislation is to be treated. I am not saying today that the noble Lord,
Lord Pannick, is wrong to pursue this point, but I do not believe it is a point with a very clear conclusion. As I have said, the Bill does grapple with this question in each of the contexts where it arises, as is done for all other types of legislation in the United Kingdom. This is complex, but the way in which it is approached by the Bill provides a degree of certainty and sets out exactly how any type of retained EU law is ultimately to be treated.
Of course, what the Bill does not and cannot do is address all of the more than 5,000 references to terms in the statute book such as “Act”, “primary legislation” or “subordinate legislation”. This is not a problem that could have been solved with simple drafting. We are returning to these provisions because the drafting does become complex. The Government were happy to give noble Lords more time to find areas where the distinction between primary and subordinate legislation was clear, visible and mattered in our statute book. Likewise, we discussed the matter with academics and others outside this Chamber and we have not identified any further issues where a simple rule such as that put forward in this amendment leads us to the right answer. But we do know of plenty where, at first blush at least, it would lead to the wrong answer, so there would at least need to be many exceptions to any simple rule that was enunciated.
Exceptions that one expects would be needed would include both where a rule or provision should not apply to retained direct EU law and where it needs to be made clear that it has been superseded by the provisions in this Bill. They include, but are certainly not limited to, for example, how the common law would apply, including the rule in Pepper v Hart; how we would deal with presumptions about extraterritoriality; how we would deal with the issue of parliamentary privilege to proceedings leading up to an enactment; and how we would deal with the presumption of non-application to the Crown of legislation. Even armed with the most extensive legal team, it would be very difficult to come up with a simple rule, and any finite list of exceptions to that simple rule. What I have endeavoured to do, therefore, is demonstrate that a simple rule that required a large number of exceptions would not be a simple rule. At some point, there would be so many exceptions to any simple rule that it would cease to be meaningful.
I should add that, despite this clear need for exceptions—some of which I have mentioned before—this amendment produces an absolute rule with no mechanism for departing from it. To support this amendment, noble Lords would have to be confident that in each place where the words “primary legislation” appear across the statute book, the provision must apply entirely correctly to the EU regulations and that in each place where the words “subordinate legislation” appear, the provision must apply entirely correctly to EU tertiary legislation. We simply do not see how we can be reasonably confident about that.
I would wish to be able to endorse the simple rule put forward by the noble Lord on behalf of the Constitution Committee, but I am afraid that such elegant simplicity is simply not possible for this purpose. There is no escaping that there will have to be an
exercise to go through each of the 5,000 references I mentioned to discover in which of them it is relevant to set out how they apply to different types of retained direct EU legislation. The only sensible approach is to look at each of those references and decide the right result in the particular context.
In response to the concerns expressed by the noble Lords, Lord Pannick and Lord Beith, where provisions need to apply to retained direct EU law, this is one of the uses to which the consequential power in the Bill will be put. However, I remind noble Lords that that power is now sunset, it is subject to sifting and any SIs of particular interest can be brought forward under the affirmative procedure. This is not a power to make constitutional provision by secondary legislation but rather to ask Parliament to approve, if required, how a range of references and provisions on the statute book should apply to retained direct EU law. We are conscious that any steps taken in that regard will be the subject of keen and direct scrutiny, and so they should be—we fully accept that.
In the present circumstances, and with that explanation, I hope that the noble Lord will understand that his amendment and his intention to provide for an elegant and elegantly ordered statute book cannot, in our view, succeed in the face of the demands of some degree of legal certainty and good lawmaking. In those circumstances, I invite him to withdraw his amendment.