Brick Court Chambers

Brexit Law Blog: Archive

This blog tracked legal issues arising from Brexit. It ran from the referendum in 2016 to last post in May of 2021.

European Union (Future Relationship) Bill

Posted on 31 Dec 2020 by Brick Court

Lord Anderson of Ipswich KBE QC @bricksilk at the Second Reading debate

My Lords,

These Agreements fairly reflect the negotiating priorities of their signatories: these included, on our side, a dogmatic and substantively empty notion of sovereignty that confounds the reputation we once enjoyed as Europe’s canny pragmatists. Having as a young man in the office of Commissioner Lord Cockfield observed the removal of precisely the red tape that now returns to constrict us, my enthusiasm for this deal has its limits. In the security field, a particular regret is the loss of access to the immensely useful SIS II database. We must hope that dogma on the European side does not defeat the data adequacy determination on which so much else will depend.

But given the dismal alternative, I greet these Agreements with relief, see much in them that is good, and focus today on the terms of the Bill itself.

I would describe it as an essay-crisis Bill.  Four increasingly expansive styles may be spotted in its hastily assembled pages.

The first style, seen in the treatment of criminal records at the start, is the careful hand-threading of these agreements into existing law. On VAT fraud and social security, a more broad-brush approach is taken: whole protocols to the Agreement are simply pasted into domestic law – whether seamlessly or not, only time will tell.

Thirdly, we have delegated powers. These clauses feature elements that your Lordships found exorbitant in the 2018 EU Withdrawal Bill, including a power to create new criminal offences punishable by up to two years in prison, and a bootstraps power to amend the Bill itself, if “appropriate”. Henry VIII has been on the steroids again.

Finally, to cover any gaps left by even these broad provisions, we have clause 29, which requires our judges to give effect to domestic law “with such modifications as are required for the purposes of implementing” the Agreements. The objective is noble: but implementation often requires choices: and to impose those choices on the courts is to push them towards the forbidden ground of policy. The existing legal doctrines of direct effect and strong interpretation have inherent limits which avoid that result. Clause 29 contains no such limits. Perhaps it is an afterthought. It certainly needs knocking into shape.

This is a rushed Bill – inevitably so – which I strongly regret that we are in no position to scrutinise or to improve. But as Baroness Taylor has said, our committees will scrutinise it after it becomes law. If necessary improvements are identified, I hope we will find a way of making them.