My Lords, I thank the noble and learned Lord, Lord Judge, and the noble Lords, Lord Pannick and Lord Beith, for tabling this amendment and for highlighting what is clearly an area of genuine concern—not just from them, but from the Constitution Committee.
I start by reassuring the House that the Clause 2 power will be used only to implement non-tariff obligations of our continuity trade agreements. For example, we will have to implement procurement obligations in several of our agreements, including the Chile agreement we signed recently. Without the Clause 2 power, we would not be able fully to implement such obligations under these agreements.
I stand before this House not professing to match in any way the legal brains and experience of noble Lords—and, indeed, noble and learned Lords—but I will give the Government’s position. Explanatory Notes are always admissible aids in the construction of an
Act. Exceptional circumstances, as in the Pepper and Hart case, are not required. Indeed, I am asked to refer to the House of Lords case R v Montilla and Others in 2004, in which it was said:
“It has become common practice for their Lordships to ask to be shown explanatory notes when issues are raised about the meaning of words used in an enactment”.
5.15 pm
My noble and learned friend Lord Garnier raised the issue of the delegation of power to make legislation, but Clause 2(5)(b) explains that the power does not include the ability to delegate or the power to make legislation. Our approach follows common drafting practice. There is a well-established legal presumption that, if a power is to be used for any of those purposes, a court would expect to see an express or an explicit reference in the legislation creating the power. To state in the Bill what the Clause 2 power cannot be used for would call that presumption into question. It would create ambiguities for the interpretation of powers in other statutes which do not contain such express restrictions, as I wrote in my letter to the Constitution Committee.
The noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope, asked why the Bill differs from the drafting of the European Union (Withdrawal) Act. It is because the withdrawal Act powers have a different starting point. Section 8(5)(5) of that Act, for example, says that a regulation made under it may do anything that an Act of Parliament may do. Given how much an Act of Parliament can do, it was necessary to explicitly limit that power so that it cannot, for example, be used to impose taxes. The power in Clause 2 is instead built from the ground up, so we do not believe that there is a need to list exhaustively what that power can do.
The Government are simply ensuring continuity in trading relationships. It is not an opportunity to change or negotiate the terms of the agreement. This, I hope, is evident in the continuity agreements we have already laid in Parliament, such as those with Chile and Switzerland. I refer noble Lords to the parliamentary reports laid alongside them, which describe any significant difference between these agreements and the original EU third-country agreements. All reports are publicly available on GOV.UK. While it is true that trade agreements are becoming increasingly broad, one must look no further than CETA with Canada, which is known for its breadth and ambition. Even CETA, however, has not required the UK to create or extend criminal offenses, impose fees, amend primary legislation other than retained EU law, or create new bodies.
The noble Lord, Lord Pannick, asked if I would make a statement about our intent. I am happy to say that we have no intention of making changes to the areas of concern to their Lordships as part of our trade agreement implementation under the continuity programme. I have, however, heard the legal weight behind this amendment. I am happy to reflect, and would welcome a meeting with your Lordships, because there are clearly very different points of view here.