European Union (Withdrawal) Bill
Wednesday 7th March 2018
(6 years, 1 month ago)
Lords ChamberEuropean Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 79-V(b) Amendment for Committee, supplementary to the fifth marshalled list (PDF, 55KB) - (7 Mar 2018)
Lord Wilson of Dinton
Lord Wilson of Dinton (CB)
My Lords, in moving Amendment 71, I will also speak to Amendments 116, 253 and 257, which are in my name and the names of my noble friend Lord Lisvane and the noble Lord, Lord Tyler, and the noble and learned Lord, Lord Goldsmith. My noble friend Lord Lisvane has asked me to convey his apologies for not being here to move the amendment himself, but he has to be absent to speak at a memorial service in Cardiff for an old friend. I am sure the Committee will understand that reason.
I feel we are now coming to the heart of the Bill. I confess that, while listening to the debates, I have found myself thinking of the Bill as creating a Frankenstein’s monster. It is sewing together 40 years of EU law, snipped around to fit with this country’s law. Clause 7 gives a Minister of the Crown the power to snip away at EU law and British law to try to get them to fit together. It is a task on a huge scale, and I do not believe anyone, wherever they are working, can quite get their mind round it at the moment or round what the consequences will be.
These amendments would tighten, in two ways, the threshold which the Minister of the Crown has to reach in order to be able to exercise the powers. They would tighten it by providing, first, that the powers could be used only where it was “necessary” to use them, not where it was considered “appropriate”. Secondly, they would give an objective test for whether the use of the powers was necessary, rather than the subjective test of whether the Minister considered it appropriate.
I believe that such changes are needed and would be justified by three things. First, there is the sheer scale of the task being undertaken. Of course, there are limits to the power—it can only be used to correct deficiencies in EU retained law which arise from withdrawal from the European Union and do so in areas which are not excluded by Clause 7(7)—which are important. But there are still huge swathes of law which could be amended under the powers. From listening to a sample of the debates that the Committee has had over the last days, those include human rights, the environment, the welfare of animals—there is very little in the legislation we are dealing with that does not affect most aspects of people’s lives in this country.
The power itself is very broad: to make law which has the status of an Act of Parliament. An extraordinary subsection, Clause 7(5), says:
“Regulations under subsection (1) may make any provision that could be made by an Act of Parliament”.
We are talking about the power to make Acts of Parliament without going through the processes of Parliament, which I find breath-taking.
Viscount Hailsham (Con)
And in an unamendable sense, because it is to be done by resolution—there can be no amendment to those resolutions.
Lord Wilson of Dinton
The noble Viscount reinforces the point which I am trying to make. The Explanatory Notes explain that the power also extends to,
“altering Acts of Parliament where appropriate”.
We are talking about the power to make law and to amend existing law. This is the dream of tyrants through the ages. It is something which is repugnant to the history of this country and the development of our legal system. My argument to the Committee is that the House should lean as hard against it as it can, provided that does not get in the way of achieving the desired result of a functioning legal system. We should not leave leeway which allows Ministers to do things which would be policy changes. I am uneasy about the danger that policy changes could come through the use of the power.
When you try to marry 40 years of legislation with British law, there will be endless choices to be made: you could go this way; you could go that way. Policy is tied up in the interstices of quite small decisions about how the laws should be married together. We should lean against anything which encourages policy change and we should focus the Minister’s power exclusively on achieving a functioning legal system, without going wider. If the law as it emerges needs to be improved, it should be improved by separate legislation that goes through proper processes. We should give only the power that is strictly necessary from the point of view of the objects of this legislation.
Another point I draw to the Committee’s attention is the number of people who will be able to make and amend law. I am not a lawyer—I was 50 years ago, but I am not now—but if I read the Bill correctly, it gives the power to a Minister of the Crown, as defined in the Ministers of the Crown Act 1975. Section 8 of the Act says that a Minister of the Crown is anyone who holds,
“office in Her Majesty’s Government”.
I have not checked this, but my memory is—it used to be imprinted on me when I was working in the Civil Service—that you can have up to 109 Ministers in the Government, so 109 people are being authorised to make or to amend law. In addition, the Commissioners of Customs and Excise will be given the power to make law and amend law, subject to the restrictions. That is another seven people—a Permanent Secretary and a number of directors-general—being given this power which tyrants dream of.
In addition, I draw the Committee’s attention to where the Explanatory Notes say that the power could include,
“sub-delegating the power to a public authority where they are best placed to deal with the deficiencies”.
So we are talking about giving public authorities the power to make law without going through parliamentary processes and to amend law. What is a public authority? According to Section 14, “public authority” is defined by Section 6 of the Human Rights Act 1998. If you read that Section 6, which I will give in its entirety, it says in subsection (3) that,
“‘public authority’ includes … a court or tribunal”.
I ask the Minister: are we seriously proposing to give the power to make law to a court? This is constitutional territory which is completely novel. Paragraph (b) in that subsection says that “public authority” includes,
“any person certain of whose functions are functions of a public nature”.
The proposal before this Committee is that the power to make and amend law within the conditions set out in the clause could be capable of being given to any person certain of whose functions are of a public nature, which in essence is any public servant. I put it to the Committee: is this necessary or reasonable?
Lord Wilson of Dinton
Is this reasonable without reference to Parliament, or to the lightest sifting procedure where any recommendations can be made?
I ask the Minister whether he has an estimate of how many people may be given the power to amend law and make law. I would be interested just to know the number. If you have so many people, possibly hundreds, given the power, you should restrict it as much as you possibly can, so far as is consistent with the objects of the Bill.
Why do I think that the phrase “the Minister considers appropriate” is inadequate? First of all, “appropriate” is a word which should be avoided as much as it possibly can. In my last jobs in the Civil Service, I was sometimes faced with proposals that the Minister should be able to do something “when appropriate”. I always reached for my red pen and struck it out.
Lord Wilson of Dinton
I think we are making the same point, which is that it either conceals inadequate thought, or it is devious.
Of course, the truth is that, if you are in government, you want to surround the Minister and yourself with plump cushions of legal protection. The legal phrase is “ex abundanti cautela”. It is about excessive caution—you do not want to take risks. I have to say to the Committee that, in this case, I think the scale of the powers proposed is so extensive that we should lean against giving Ministers plump cushions of legal protection; it should be the strict discipline of an objective test of what is necessary.
It is interesting that the Government themselves, in their White Paper last March, used the language of necessity. The White Paper twice said that the powers would only be usable “where necessary”. In the cases which it provided where the powers might be used, it used the word “need”: it used the language of necessity; it did not use this language of appropriateness. I think it is only recently, with the sudden alarm that the scale is going to be so great, that the desire for plump cushions has arisen. I think that the Government are backing away from an undertaking only to have the power usable where it is necessary, which they gave in March last year and which they should have stuck to.
There are all sorts of arguments which may be used, such as that the word “appropriate” is used in other legislation. I think that is true, but I do not think that it is justified in this case, where the scale is so extensive. It could be argued that, when faced with a choice, there are different solutions and, therefore, there is no solution which is necessary. That is a flimsy argument—that horse will not run. What we are saying in this amendment is that the power should be used where its use is necessary, not where the solution is necessary.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, if this Amendment is agreed, I cannot call Amendments 72 or 73 because of pre-emption.
Lord Sharkey (LD)
My noble friend Lord Tyler has added his name to Amendments 71, 116, 253 and 257. Unfortunately, he is unwell and unable to be in his place today. He has, however, advised me —extensively—to rely heavily in my remarks on the report of the DPRRC published on 1 February. As I am sure that Members will know, the report was highly critical of this Bill. It noted that:
“The Bill confers on Ministers wider Henry VIII powers than we have ever seen”,
and went on to discuss some of these powers in detail. The first it examined was the use in the Bill of “appropriate” instead of “necessary” as a test for action by secondary legislation. The committee pointed out that this gives the Minister much wider discretion than the Government’s White Paper commitment not to make major changes to policy beyond those necessary to ensure continued proper functioning of the law after we leave the EU. Instead of a test based on objective necessity, the Government have substituted the much wider and entirely subjective test of the Minister’s judgment about what he or she considers appropriate. The Government must explain why they have abandoned the White Paper commitment. It would help us to understand their reasoning if the Government could also provide the House with concrete and substantive examples of where a test of necessity may fail to produce continued proper functioning of the law.
I am sure that when he does this, the Minister will want to acknowledge and deal with paragraphs 8 to 10 of the DPRRC report, which concluded, via a worked example, that a proper test of necessity does not prevent his choosing between possible solutions when the “necessary” threshold is in fact met. I am sure that he will tell the House why he disagrees with the DPRRC’s recommendation in paragraph 12, which simply says:
“The subjective ‘appropriateness’ test in clause 7 should be circumscribed in favour of a test based on objective necessity”.
As the DPRRC remarked, the Bill is packed with Henry VIII clauses, and it might be worth remembering what actually happened when the Minister’s predecessors, Thomas Cromwell and Lord Audley, presented the original Henry VIII power, the Bill of Proclamations, to Parliament. Historians have disagreed about Cromwell’s motives but not about what the Bill sought to do—to make the King’s proclamations enforceable as law by the courts. Both Houses of Parliament saw the evident dangers in this and both resisted. The eventual outcome, the Act of Proclamations, was a heavily revised version of the original Bill. It showed Parliament’s strength of feeling on the issue and its skill in avoiding direct confrontation with the King. In those days, the penalty for defying the Executive was a little sharper-edged than a visit from the noble Lord, Lord Strathclyde. In the end, Parliament passed the Bill but amended it to ensure that the provisions for enforcement would be wholly unworkable—and so it proved.
I am not suggesting exactly the same approach, but I do suggest that we take the same view as our predecessors about giving wide, direct law-making powers to the Executive. We should do what Parliament did in 1539—we should resist.
Lord Lang of Monkton (Con)
My Lords, I welcome the opportunity to speak to this group of amendments and support those spoken to by the noble Lord, Lord Wilson of Dinton. I congratulate him on how he exposed the ramifications that reach so far into our constitution. It saves me the task of trying to tackle it.
It is a shame that the House is not more fully attended tonight. That is nothing to do with my personal egotism—quite the reverse—but this is such an important subject; I am very glad that we have reached it in the Bill, and it deserves the closest of attention. I speak in support of Amendments 71 and 72, as well as Amendments 76, 77 and others in this group. In so doing, I am keen to focus less on the Brexit-related provisions than on the constitutional implications of granting Ministers special powers to undertake the Bill’s purpose, while not limiting and containing such powers and enhancing scrutiny of the resultant secondary legislation.
The amendments themselves rein in Ministers’ powers from when they are appropriate to only when they are necessary, and are very straightforward. In the case of the amendment yet to be spoken to by my noble friend Lord Hailsham, “essential” is injected into the proceedings as well, giving a threefold choice to your Lordships. However, it is a transparent illustration of why the amendments are needed. “Appropriate” is so bland, broad and subjective as to be almost meaningless, as has been said, and it gives the Minister excessive influence and discretion. “Necessary”, by contrast, is more specific and requires justification—and I believe that the courts prefer to handle litigation over “necessary” than “appropriate”, for reasons one can understand. Clause 7 is stuffed with powers that need to be addressed in this way. It is time limited to some extent by subsection (8). I welcome that, and I welcome in passing the concession on sifting granted by my noble friend the Leader of the House in her Second Reading speech. But the clause is one that cries out for tighter control and closer scrutiny.
The Constitution Committee reported extensively on the Bill in three volumes—a unique event—so the Government have known for a whole year of the concern that we expressed on such matters and have heard it often repeated since. I am no longer a member of the committee, but I plead guilty to being partly responsible for the first of those three reports. Again unusually, that report was published before even the White Paper was produced, let alone the Bill itself, a procedure that I rather recommend to Select Committees. It makes life very much easier and gives room for one’s imagination to fly. However, the essence of the report was to recognise that the massive task of legislative retrieval would need special powers for Ministers. The Government repeated that in their White Paper and quoted our report in support, but they rather cynically omitted and ignored the vital qualification that we had stressed that such new powers had to be accompanied by tighter controls and the safeguards that we recommended—explanatory memorandums, certification of statutory instruments by Ministers, strengthened scrutiny procedures and so on. I heard the comment that the noble Lord, Lord Wilson, made about the Constitution Committee’s recommendation as an alternative to “appropriate”. I am glad to say, “Not me, guv”—I was off the committee by the time that report came out.
Our recommendations were largely ignored in the first report, such that when the Bill appeared last autumn the Constitution Committee, then under the capable hands of the noble Baroness, Lady Taylor of Bolton, felt obliged to point out that,
“the Bill weaves a tapestry of delegated powers that are breath-taking in terms of both their scope and potency”.
Since then, there has been some progress, but not very much and not nearly enough.
The amendments in this group are not just a matter of trivial semantics; they are the granular embodiment in microcosm of a fundamental principle—namely, that one pillar of our democracy is the balance of power between the Executive and Parliament. This Bill, if unamended, would tilt that balance quite heavily towards the Executive. To do that would be to degrade what will be an historic Act in due course and jeopardise the rights of Parliament. These amendments and others to come are not about Brexit itself; Brexit is important and the Bill is vital to help us to secure that. I want it to pass into law and soon. But the amendments are about something every bit as important —who is going to guard the constitution if not this House?
Ministers want their legislation to get through quickly and painlessly; officials are loyal to their Ministers and fancy a quiet life. The other place has an interest, but one that is often secondary to political obligations of Members, and the pressure on them from other events. I hope that my noble friend is listening to this debate and that the Government will at last respond to the case being put to them and respond not just in this clause but throughout the Bill, right up to and including Clause 17, perhaps by reference to changes that they have already agreed to the Sanctions and Anti-Money Laundering Bill. Debate in Committee would then proceed just a little faster.
It falls to us in this House to guard the gate on behalf of Parliament and democracy and to uphold the role of the constitution in protecting both. If the balance between Parliament and the Executive is lost, the rule of law and our freedoms are at risk. The time when we take back control of our laws is not the time to allow the corrosion of our law-making process.
Lord Bilimoria (CB)
My Lords, if I may just follow on from the noble Lord, Lord Lang, I often say that this House’s role is to be the guardian of the nation. To build on what the noble Lord, Lord Wilson, said, when we go back to the beginning of all this—the referendum—it was all about taking back control and sovereignty and not bypassing Parliament. What happened with Article 50? The Government tried to bypass Parliament. Now we have this withdrawal Bill, giving powers to make and amend law. As the noble Lord, Lord Wilson, said, there are over 100 Ministers, and it can be delegated to government departments—once again trying to bypass Parliament.
Under an earlier amendment, I quoted Dominic Grieve, a former Attorney-General, who recently said:
“Having just spent four months considering the EU (Withdrawal) Bill … I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument … and where the entire structure was so closely interwoven that the same end could often be achieved by different routes”.
That is a former Attorney-General from the government party.
Then there was the Strathclyde review. Let us not forget what happened in 2015 when this House was criticised for flexing its political muscle. The review said that we should,
“understand better the expectations of both Houses when it comes to secondary legislation and, in particular, whether the House of Lords should retain its veto”.
We were openly bullied and told, “Don’t you dare challenge a statutory instrument again”. In fact, I remember in that debate, the Government went so far as to say, “You are threatening the very existence of this House if you threaten us any more”. Now we have the potential for thousands and thousands of statutory instruments. Are we going to challenge every one of them and threaten our very existence every day? Do Henry VIII clauses give Governments the power of royal despots?
Viscount Hailsham
Not only that, but the more tightly constrained the language of the Bill, the more readily the courts will intervene.
Lord Bilimoria
I thank the noble Viscount for that intervention. At the moment, the courts very rarely intervene. They had to intervene with Article 50 being put through Parliament; that was fundamental. This House defeated the Government twice by almost 100 votes each time in two of the biggest votes in the history of our Parliament—614 of us voted in one and 634 in the other. Do we want a situation where this Parliament or the Government are continually challenged by the courts? We do not want to go there, and this is why these amendments are important.
I conclude that the power to amend all EU-derived primary and secondary legislation by the Government without sufficient scrutiny, checks and control, bypassing Parliament, goes against the ultimate supremacy of Parliament itself.
Lord Beith (LD)
My Lords, from this side of the Committee I shall speak to Amendment 244A, in my name, which comes from the Constitution Committee and was mentioned by the noble Lord, Lord Wilson, in his opening remarks. The amendment’s purpose is to provide a more objective test and a requirement for Ministers to state that they have applied an objective test. Should they have failed to do so, they become accountable for not having done so. That is the value of it. It is in no way exclusive of the series of amendments in the remainder of the group, almost all of which replace “appropriate” with “necessary”. I will come to that in a moment. I want to appreciate the words a few moments ago from the noble Lord who is the former—and much respected—chairman of the Constitution Committee. His contribution is one that Ministers really ought to note.
We are dealing with wording in this legislation that worries us enough in this context. However, noble Lords should be in no doubt that, if this wording remains in this legislation, subsequent debates will take place around the idea that, “It was included in the withdrawal Bill and there were some very serious issues raised in that, so it must be acceptable” and that it must be reasonable to use such a shallow test of appropriateness for very far-reaching statutory instrument powers. Numerous other Bills will come before us in the course of this Parliament which have statutory instrument powers in them, and this and future Governments will draw on the precedent of how this legislation is worded.
As to the distinction between “appropriate” and “necessary”, the suggestion I have heard that Ministers do not realise they are open to legal challenge is, I think, quite wrong. Ministers are well aware that they might be open to legal challenge, and that is why they prefer “appropriate” to “necessary”. It gives them a “plump legal cushion”—that wonderful expression of the noble Lord, Lord Wilson—behind which they can hide. It is just not good enough; we have to find better wording. If Ministers are unhappy with necessity, they must come up with something more effective. We find the word “appropriate” used in many contexts. It conjures to mind the sort of instructions for a day out that say “Appropriate footwear should be worn”. That clearly indicates to the person who has to make the decision that they have a fair degree of discretion—it could mean hiking boots or other firm-soled shoes, as long as it is not stilettos or ballet pumps. They have a choice. Ministers are desperately trying to preserve choice for when they bring forward statutory instruments under this legislation.
The problems of the statutory instruments are not confined to Henry VIII provisions, as the noble Viscount, Lord Hailsham, pointed out. There is the inability to amend any of these statutory instruments, whether they are Henry VIII in their impact or whether they impact merely on previous statutory instruments. The inability to amend them grossly weakens Parliament’s ability to deal with matters that would normally be in primary legislation.
I am not only sympathetic to the amendment that the committee itself has put forward, which has my name on it, or something like it, but I am also very supportive of the attempt to find a better word than “appropriate”. So far, at any rate, necessity seems the right provision.
Lord Cormack
My Lords, I have added my name to a number of amendments that delete “appropriate” and insert “necessary”. They are all in this group. I do not claim any particular merit for that amendment: the noble and learned Lord, Lord Goldsmith, is, I believe, the lead name on this amendment. The fact is, we have one thing in common. Whether is it “essential”, as my noble friend Lord Hailsham will doubtless seek to persuade us in a few minutes, whether it is “necessary”, used in the context described by the noble Lord, Lord Wilson, when he moved his amendment so admirably, or whether it is a bare “necessary”, I do not mind. I frankly have a slight preference for the wording of the noble Lord, Lord Wilson.
We are in a very sad place when, having been told that we were taking back control, what we are doing is bestowing control. Parliament is bestowing control—if this goes through—on the Executive. I have quoted before in your Lordships’ House the famous Motion moved in 1781, I believe, in another place by Colonel Dunning: “The power of the Crown has increased, is increasing and ought to be diminished”. Substitute “Executive” for “Crown” and that is what this is all about. I also think of the immortal words of my friend the late father of my noble friend Lord Hailsham, who talked about an “elected dictatorship”.
Are we really seeking to leave the European Union—which I believe is a foolish step—to bestow on the Government the power which Parliament should take? That is the fundamental question. We should not bestow the power on or allow any Minister—whether he or she be ever so high or ever so low, whether he or she be at the top of the 109 or at the bottom, it matters not—to change the law of the land, and then indeed extend it, as the noble Lord, Lord Wilson, pointed out in his admirable speech, to public bodies and to the courts. We live in a parliamentary democracy. Your Lordships’ House rightly has much less power than the elected House, but we can act as a check and a balance and as an encourager to those in another place. These are probing amendments tonight, of course, but I am confident that this will come to a vote on Report, and we should say to our colleagues in another place, “Do not give up the power which you exercise as representatives, not delegates, of your constituents, because if you do that, it will be a real nail in the coffin of democracy”.
I personally believe that a referendum is inimical to representative democracy. But, as we have said before, we are where we are. We are moving away from the European Union, but we must move away as a parliamentary democracy, where power ultimately resides not in No. 10 Downing Street, the Treasury, or in any ministerial office but in the Chamber at the other end of the Corridor. Your Lordships’ House has a particularly important role in stiffening the sinews of those at the other end of the Corridor. There is an enormous wealth of experience in your Lordships’ House, which was demonstrated by the noble Lord, Lord Wilson, this evening, and which would have been demonstrated, I am sure, with equal eloquence by the noble Lord, Lord Lisvane, had he been able to be with us. We in a sense must see ourselves as the servants of democracy, but with a duty to put some real strength in the directly elected House.
I hope that we will have a response from the Minister this evening that will indicate that he understands what this is about. He, of course, is one of the 109. He may be low down on the list, but he is there. Whether he is 109, 108 or 73, I know not and I care not—but he is there. I hope that at the very least he will repudiate any notion of exercising power that it is not for him to exercise. We have to address this issue, whether we think in terms of Henry VIII or Thomas Cromwell or Oliver Cromwell, all three of whom would have looked upon this as a marvellous mandate. We have a duty. Tonight we are probing, but there will come a night when we must vote if the response is not as it should be this evening.
The Lord Bishop of Leeds
My Lords, I add my voice to those who are expressing caution. I sympathise with Ministers. Somehow a balance has to be struck between the technical freedom and flexibility to deal with matters as they arise—that is a legitimate concern—and the constitutional questions that have been raised this evening. The words matter. The word “significant” is one of my pet hates, where people use it because they do not want to find a more precise word. You always want to ask, “Significant of what?” They probably mean, “It’s important” or “It matters to me”.
“Appropriate” is another one. It is a word that creates space when we do not want to be precise—but when you are dealing with matters of law you need precision. It seems to me that the very simple mechanism of changing “appropriate” to “necessary”, with some criteria by which it could be deemed to be necessary or unnecessary, offers the sort of balance that the Committee is looking for.
Lord Campbell of Pittenweem (LD)
My Lords, the noble Lord, Lord Wilson, said that it was 50 years since he had practised as a lawyer. Perhaps I may observe to him, once a lawyer, always a lawyer—and he certainly demonstrated that in the way in which he introduced this amendment. The effect of the statute before us is to provide an unfettered discretion, and we should be extremely slow to provide unfettered discretions to anyone. You would not give an unfettered discretion to the captain of a golf club. The idea that we will give 109 Ministers an unfettered discretion seems to me to fly in the face of all constitutional propriety.
It is not even the Secretary of State who is asked to exercise these powers. That frequently appears in statutes where a power is afforded. In this case it is any Minister of the Crown—and, added to that, public authorities, as widely defined. It is difficult to imagine public authorities understanding the whole question of discretion, as we see time and again in the courts when judicial review is successfully taken against local authorities, for example. As the noble Viscount, Lord Hailsham, pointed out a moment or two ago, if you have the power to make by regulation such provision as you consider appropriate, the prospects of judicial review are nil. There will be no review because, in any circumstance where a subjective test has been imposed or offered to the Minister, there can be no challenge. Necessity, on the other hand, is capable of challenge and leaves open the whole question of judicial review where the test of reasonableness arises in the course of the action—in this case of a Minister, or indeed of any of these public authorities.
When the bus with “£350 million a week” was going around the country, and when those who emerged from it, including the blonde bus conductor, told people, “We want to take power back from the European Union and Brussels”, no one said, “We want to take power back so we can give it to 109 Ministers or public authorities”. If they had said that, I rather fancy that the bus would not have received the generous welcome that it did on many occasions.
Lord Dykes (CB)
My Lords, it is a great pleasure to follow five or six scintillating and convincing speeches, all saying similar things, and I entirely concur with what was said. Therefore, I can be very brief. First, I thank my noble friend Lord Wilson for his remarks. I apologise to him for missing the first minute and a half of his speech because I naively thought that two government Statements would last a bit longer than they did; they were very brief indeed. I surmise that my noble friend referred to my noble friend Lord Lisvane, a very good friend to many of us. I assume he is on onerous public duties in Herefordshire. Sadly, the noble Lord, Lord Tyler, cannot be present due to illness. Therefore, two sponsors of the amendment are sadly unable to be here but that in no way weakens the strength of this message for the Government. I hope the Ministers on the Front Bench will listen very carefully to these words.
It is also worth noting that, apart from a later big grouping, this group contains the largest number of amendments of any group since the Committee proceedings began. This is the subject that most exercises the Members of this Committee and, I think too, quite a number of MPs although they are sometimes under much greater pressure for obvious reasons not to say too much about it.
I was very struck by what the noble Lord, Lord Sharkey, said and by what he said representing the noble Lord, Lord Tyler. Since I am an amateur and not an expert on these matters, I was impressed by the comments of the Bar Council on its worries about these matters. In paragraph 60 of its general statement, it said:
“Clause 7 empowers Ministers to make regulations to ‘prevent, remedy or mitigate’ any ‘failure of retained EU law to operate effectively’ or ‘any other deficiency in retained EU law’. Clause 7(5) includes an open-ended power to make ‘any provision that could be made by Act of Parliament’. There are comparable Henry VIII powers in Clauses 8(2) (in respect of regulations to ‘prevent or remedy’ any breach, arising from Brexit, of the UK’s international obligations”.
It went on to say in paragraph 61:
“We consider that these provisions (and in particular Clause 7) continue to raise serious concerns both from the perspective of the rule of law and the sovereignty of Parliament and in respect of legal certainty”,
which we sometimes forget. By the way, as the sunset clause possibilities in Clause 8 have been mentioned by at least one speaker, in paragraph 67, the Bar Council adds:
“While we recognise that the Henry VIII power in all three clauses (7-9) is subject to sunset provisions, we do not think that this is sufficient to address the above concerns. As noted in the introduction to this paper, the operation of the amending powers and sunset clauses will need to be carefully reconsidered in the light of whatever is ultimately agreed for any transitional period or under the Withdrawal Agreement”.
I agree with the passionate remarks of my good friend, the noble Lord, Lord Cormack, about the dangers facing this Parliament—mainly the other House, of course, but also this one—in allowing these dangerous provisions to go through without any amendment. I anticipate a major expression of unease, to put it mildly, when Report stage comes along. I hope and pray that will be so, and we look forward to the Minister speaking in the framework of that need to assuage our anxiety when he comes to reply.
Viscount Hailsham
My Lords, I rise to speak primarily —subject to pre-emption, whatever that means—to Amendments 73 to 79 and Amendments 117 to 119, which are in my name.
I think we ought to start the debate—although we have started it already—by reflecting on how very wide the powers contained in Clauses 7 to 9 are. They are powers exercised by regulation: mostly by the negative procedure, but some by the affirmative procedure. However—this is the critical point—in both instances, the regulations when laid cannot be amended. That raises an issue that I hope this House will come to on some subsequent occasion, because I have a number of amendments in my name on that very subject.
These powers are very wide-reaching. One way of ascertaining how significant they are—I hope the right reverend Prelate will forgive me if I use the word “significant” in this context—is to look at paragraph 2 of Schedule 7, which lists the provisions that can be made only by the affirmative procedure. I cite a few examples: the creation of a public authority and presumably the powers to be given to it; the transfer of legislative powers from an EU entity to a UK-based public authority; the levying of fees without specific limit, which I am sure noble Lords know we will come to later in Committee; the creation of criminal offences that attract a custodial sentence of up to two years, which, again, we will come to later in our debate; and the creation of powers to legislate or amend existing powers. These powers are not trivial in character. I have not sought to identify the various powers that could be exercised by way of the negative procedure, because their name is legion.
There is one fundamental rule in politics, which I have learned from 31 years in the House of Commons: if you give powers to Ministers and officials, those powers will be abused—sometimes by design and sometimes by inadvertence, but the abuse will happen and that is certain. It is especially so when the powers are created by secondary legislation because the parliamentary oversight is slight and ministerial oversight is often non-existent. So the question your Lordships should be asking—I agree with my noble friend Lord Lang that it is a pity more noble Lords are not asking themselves this question tonight—is whether the language in the Bill is sufficiently tightly drawn to prevent abuse. The answer to that question is manifest to all of us and all noble Lords who have spoken: no. The Bill does not prevent abuse; it enables abuse.
The powers given to Ministers are “appropriate”. That is a weasel word. Nobody is better placed than I to describe it as such. It is a subjective word, very difficult to define in advance, impossible to challenge and non-judicable. That is why, when I was a Minister, I used it often—at the Dispatch Box, in drafting and in correspondence. I knew full well, as does every person who has stood at the Dispatch Box, that “appropriate” means precisely what the Minister wants it to mean. The noble Lord, Lord Campbell, is quite right about that. Might I suggest the Corbyn/Johnson test to your Lordships? It is very useful. I look to my side of the House and ask, “How many of your Lordships want to see Mr Corbyn possessed of these powers?” I now turn to the other side of the House, lest noble Lords think I am being partisan, and ask, “How many of your Lordships want to see Mr Johnson possessed of these powers?” The joke is that you can reverse the question and get the same answer.
We should not allow the draft as it is. I accept that the distinction between “necessary” and “essential” is pretty minor. I can live perfectly well with the word “necessary”. “Essential” is one notch higher in the hierarchy of requirement but I accept that “necessity” has been hallowed by legislation in the past. I encounter that word frequently in regulatory law, and the noble Lord, Lord Campbell, was absolutely right to touch on the point of judicial review. If you use the word “necessary”, it makes things easier to challenge. There have been many appeals in the regulatory framework where the courts have held that the test has not been laid out.
I want to comment on two other amendments I have ventured to propose. Amendments 74 and 117 require the Minister to have “reasonable grounds” for his or her decision on the need to trigger the regulation-making powers. I will be open about this: my purpose is to tighten the test, to make it judicable and to limit the discretion. I would very much like to know from the Minister why he objects to the use of reasonable grounds as the criterion for exercising the power. I am sure he is not going to say that he wants to rely on unreasonable grounds; that is not, I think, an argument he would like to put forward. We are entitled to know the justification.
I have one very small point on Amendment 75, which includes a reference to redundancy. What does that reference add to what is already covered by the retained part of Clause 7(2)(a)? It comes to this: the main issue for this House is to require a test of necessity to be imported into these three clauses and elsewhere in the Bill where the Government want us to accept a lower threshold of need—or, more precisely, put no threshold at all. I regard this as matter of considerable importance and I want to know—as I am sure the Committee does—why the Government want us to prefer a word that gives the maximum discretion to Ministers, but the minimum control and influence to Parliament and the courts.
Lord Wallace of Saltaire (LD)
My Lords, my name is on some of these amendments. I will be extremely brief. We are now at the core of the Bill, and at the core of how the Government respond to it. I cannot recall reading two such critical reports from committees of this House as the two we have had on these clauses— for example the suggestion that Clause 9 is wholly unacceptable and the suggestion that Clause 7 leaves very considerable uncertainty, both of which are from the Delegated Powers Committee. I therefore ask the Minister to offer us the prospect that the Government will come back on Report with their own recognition of the strength of feeling in this House. Without question, the Government will lose heavily on this the first time it is tested, and quite possibly again after it has gone back to the other place if the Commons sustains it.
We are in a position at which we need from the Government some reassurance on these constitutional issues, as well as these issues of trust, as they put through a Bill with a huge range of flexibility. We need reassurance on the Government’s future intentions, as their future intentions on much of this are still not entirely clear. I simply ask the Minister to be generous and to stretch his freedom of action as far as he can in the way he responds.
Baroness Whitaker (Lab)
My Lords, the noble Lord, Lord Lang, pointed out that we are a bit thin on the ground for such an important set of amendments, but the Minister should know that there is behind us an army. I have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals. There is very widespread civic concern over these clauses, and the Government should heed it and accept these amendments, which have such widespread support also in your Lordships’ House.
Lord Mackay of Clashfern (Con)
My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.
We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.
I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.
I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.
In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.
Lord Goldsmith (Lab)
My Lords, these are hugely important amendments. The Minister will have noted that not a single Member of the Committee has spoken in favour of the present position in the Bill. From all sides of the Committee, it has been stated that the Bill, as it stands, is not acceptable. I am sorry that the noble Lord, Lord Lisvane, is not present today, for reasons that we all entirely understand. Noble Lords will recall what he said at Second Reading, when he talked about this as the biggest transfer of power from Parliament to the Executive in peacetime. I entirely agree. I agree with what has been said by the noble Lords, Lord Wilson of Dinton, Lord Cormack and Lord Lang of Monkton—with whom, or rather under whom, I was privileged to serve on the Constitution Committee, when he chaired it. I agree also with the noble Lords, Lord Beith, Lord Wallace of Saltaire and Lord Campbell of Pittenweem. Everybody has taken the same position in relation to that.
Let us look at the key amendment, Amendment 71, to which I am privileged to have added my name, just to note the importance of what it does. It would replace the statement that “the Minister considers it appropriate” with “it is necessary”. As a former Minister, as a former adviser to Ministers and as a practising lawyer, I fully see the significance of that change. I know as a lawyer that if I am able to say to the judge, “All that is required is that the Minister considers it appropriate—how can you say that he did not? How can you second guess that?”, I am home and dry. If, on the other hand, I have to show that it is necessary—not just in the Minister’s decision, not just on reasonable grounds, but that it is in fact necessary—then that is the test that the court has to undertake in order to satisfy itself. The point behind these amendments is that nothing less than that will do to enable this huge transfer of power to the Executive from this House.
I do not need to repeat the remarks made by other noble Lords about how taking back control should not mean taking back control by the Executive—that is not what anybody had in mind. I do not need to repeat the remarks about the number of Ministers that this gives power to. I am not even sure that the figure of 109 is right. I recall, in government—no doubt the Minister will tell me that it does not apply here—that all Ministers can act, and often do act, by their officials. The Carltona principle means they can sign the instruments, so it may mean that the 109 is multiplied manifold. I have no doubts about their good intentions, but this is not what our system requires, and we should not be giving it up in these circumstances.
Other noble Lords, including the noble Lords, Lord Bilimoria and Lord Dykes, and the right reverend Prelate the Bishop of Leeds, have also spoken powerfully in favour of these amendments.
I have a couple of other points to make, as most of what I wanted to say has already been powerfully and clearly expressed by noble Lords. The most important point is the one I started with, which is that the Minister must see the unanimity of view, as it appears at the moment, around the Committee about the change that needs to be made. We can debate whether it is essential or necessary. I rather agree with the noble Viscount, Lord Hailsham, that “necessary” has become a term well understood by the courts and so it is probably the better one to have, but the end aim is the same. That it is not a decision for the subjective view of the Ministers is the other key point on which we agree.
One point that I want to deal with, which has not had much discussion so far—although the noble Lord, Lord Beith, raised it—is Amendment 244A. It proposes that there should be a statement by a Minister as to the need for the change, and it is not simply a policy change. There is merit in that proposal, I would suggest, though not as a substitute for the amendments we are proposing. I draw attention to the similarity with Section 19 of the Human Rights Act, an excellent provision which requires that a Minister has to certify that a piece of legislation is compatible with the convention rights. We see it on the very front of this Bill itself. I am sorry that the noble and learned Lord, Lord Irvine of Lairg, is not in his place. He had a lot of involvement in making sure that that worked, by insisting that when it came to certifying that legislation was compatible, it was not just on a wing and a prayer.
Viscount Hailsham
I am grateful to the noble and learned Lord. Taking his point, if you were to combine the certification together with the requirement that the Minister had to have reasonable grounds for triggering regulatory power, then one has a very high degree of protection, does one not?
Lord Goldsmith
I am grateful to the noble Viscount. I would go further. First, I would say that the amendment needs to change the test so that it is “necessary”, not “considers necessary”, not “considered on reasonable grounds”. Secondly, the way the Human Rights Act certification works is that it is not enough for the Minister to have “reasonable grounds” that it may be compatible. What is required—at least when I was in government, and as a result of the diktat that was given to the Civil Service—is that the Minister must have legal advice that, more likely than not, the court would agree. I am glad to see the Minister nodding because that means that the same principle is being applied under this Administration as under the Administration in which I was privileged to serve.
Therefore, I take the noble Viscount’s point, but it is important that it is not just a consideration but an actuality based not on reasonable grounds but on fact. Obviously there is some judgment to be made about “fact” but it needs to be clear and there might, in addition, be a role for something like Amendment 244A.
This is the second time today that this Committee has considered the use of the word “appropriate”. Those who were not able to be present may wish to read the report of the earlier debate when we considered the use of the word “appropriate” in rather different circumstances—whether judges could and should rely on European case law in reaching decisions and whether it was enough that they should find it relevant or appropriate. One noble Lord who is not in his place suggested that the judges could use the law if they found it “helpful”. My worry is that that is exactly what the Government think “appropriate” means here. If this power means that Ministers can make regulations and changes because they think it helpful to do so, that is not what this House should allow them to do.
The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)
My Lords, I thank noble Lords very much for what has been an excellent debate. I use the word “debate” but only one point of view has been expressed and I have heard the message from all sides. However, I shall address the issues under consideration.
I say, first, to my noble friend Lord Cormack that he has put an intriguing thought into my mind. I will speak to my officials first thing tomorrow morning to find out where I, as a Minister of State, come in this list of 109—I suspect more towards the bottom than the top but we will find out.
The noble Lord, Lord Wilson, asked me about the number of people who will be able to exercise this power without parliamentary scrutiny—a question that I suspect is almost impossible to answer. I think that the main issue is not the number of people but the number of limitations on the exercise of that power. The power is time limited and clearly limited in what it can be used for. It may only prevent, remedy or mitigate deficiencies in EU law, and of course secondary legislation is subject to well-established parliamentary procedures. Where legislative powers are sub-delegated to public authorities, this will always be subject to the affirmative procedure.
I am pleased to have the opportunity to revisit what is clearly a very important issue in the context of the Bill. The Government will place some additional draft examples of statutory instruments or parts thereof in the Library of the House. That is something that a number of noble Lords have asked for in meetings that I have had with them, so I will ensure that that happens—most likely tomorrow.
I have listened with interest to the many contributions today, and to the extensive contributions of the Constitution Committee, which I had the pleasure of speaking to this morning along with my colleague in the other place, the Solicitor-General. I have read the reports of that committee and of the Delegated Powers and Regulatory Reform Committee, which have very much helped to frame our thoughts on this issue.
As a number of noble Lords have said, both those reports go into great detail on the scope of the delegated powers. As many noble Lords will also be aware, they come out with quite different recommendations. As I said at Second Reading, we are approaching this matter in a spirit of collaboration. The Government are looking very closely at how the powers in the Bill are drawn and how they will be exercised, particularly in the light of the committee recommendations and developments in other pieces of legislation.
As the Constitution Committee notes, comparable arguments were made during the passage of the sanctions Bill through this House and a mutually agreeable position was found in that instance. That has clearly informed the committee’s recommendation and we are receptive to the arguments made in its report. I am confident that a mutually agreeable position will be found.
As I will explain in a moment, the Government do not see the DPRRC’s recommendation as workable. However, we would very much like to talk to noble Lords following the debate, with an eye to coming back to this issue on Report.
As noble Lords will appreciate, the situation that this Bill responds to is, quite simply, unprecedented. A vast amount of EU law is being transferred to our statute book, including thousands of EU regulations. As such, the programme of secondary legislation to ensure that this law operates effectively must match that. In the face of such a task, it has always been clear that the Government will need relatively broad delegated powers to deliver a functioning statute book. Indeed, the Constitution Committee outlined in its interim report that “relatively wide” delegated powers were inevitable.
I understand that there are noble Lords who have had concerns about delegated powers for some time, and the Government are keen to continue listening to suggestions in order to improve those areas of the Bill. That listening process started during this Bill’s passage through the other place, where a number of changes were introduced to reduce the scope and increase the parliamentary scrutiny of the delegated powers. However, we cannot significantly restrict the scope of these powers, which, it is acknowledged, need to be broad.
Let me deal directly with the concerns raised by the noble Lord, Lord Wilson. Much of the concern about the delegated powers focuses on the use of “appropriate” to describe the discretion afforded to Ministers when making regulations to correct deficiencies. In case there is some misunderstanding here, let me be clear: “appropriate” in Clause 7 does not give Ministers unrestricted discretion to correct anything that they may wish or like. Corrections must not be appropriate per se; they must be appropriate to correct the particular deficiency they are addressing. The threshold for ministerial decisions is set firmly within the context of those purposes.
I appreciate that there is a degree of subjectivity to these tests—but that is true of almost all tests, and it is important to acknowledge that there are limitations on the power. Parliament polices the Government’s interpretation of its vires to act through the mechanism of the Joint Committee on Statutory Instruments, which I have no doubt will take a keen interest in instruments under this Bill; and ultimately, as a number of noble Lords have pointed out, these tests are litigable in the courts. So we cannot responsibly remove “appropriate” from the Bill.
I will now delve into the detail of the various different permutations of amendments seeking to restrict the scope of the delegated powers. The first amendments I would like to discuss are Amendments 201, 243 and 245, tabled by the noble Lord, Lord Bassam, which attempt to ensure that Ministers have considered that exercises of the main powers are made for good reasons and are reasonable courses of action. These match the Constitution Committee’s recommendation, and a smaller group were added to the Sanctions and Anti-Money Laundering Bill.
Amendments 74, 117 and 139, tabled by my noble friend Lord Hailsham, seek to write into the Bill that Ministers’ consideration of the appropriateness of any exercise of the delegated powers must be made on reasonable grounds. This is the right type of approach in not altering the fundamental scope of the powers.
Lord Cormack
Is my noble friend saying that he has made his mind up—or the Government have made their collective mind up—on retaining “appropriate”?
Lord Callanan
If my noble friend will forgive me, I will discuss that in a second.
Ministers make their decisions on secondary legislation based on reasonable grounds in the normal course of events. The use of these powers will be subject to the usual public law principles designed to ensure that the Executive act reasonably, in good faith and for proper purposes. I accept, however, that noble Lords have principled and legitimate concerns and we will ensure that these are addressed and that the reasonableness of a Minister’s courses of action is made clearer. Given the views expressed today, I would like to engage in further discussions with noble Lords with a view to returning to this issue on Report.
Amendments 71, 72, 76, 77, 78, 79, 116, 118, 140, 229, 253, 254, 257, 258, 264, 265, 276, 277, 290 and 291, which were tabled by noble Lords including the noble Lord, Lord Lisvane—to whom I spoke yesterday and I understand why he is not in his place today—the noble Lord, Lord Foulkes and the noble Viscount, Lord Hailsham, seek to exchange “appropriate” for “necessary”, about which we have had a great deal of debate, in the main powers and schedules in which it can be found. I understand noble Lords’ concerns but, as I have stated, this would have a serious impact on our vital programme of secondary legislation to prepare our statute book for exit day. “Necessary” is a high bar to meet. The courts have said that the nearest paraphrase for “necessary” is “really needed”, but such a test would be too constrictive.
Lord Newby (LD)
Can the noble Lord give an example of where something is not really needed? Surely the whole point of this legislation is only to do things that are really needed—not to do anything that you think, when you wake up in the morning, might be a jolly good idea.
Lord Callanan
If the noble Lord will have a little patience I will get on to that in a second.
If regulations could only make “necessary” provisions, the powers would be heavily restricted to a much smaller set of essential changes. For example, if the Government wanted to change references in legislation from euros to sterling, we would expect such a change to be considered “appropriate” both by the courts and, I hope, by this House, but it might not be considered “necessary”.
We might manage to ensure that our statute book is in a legally operable state, but it would not be in its most coherent form, or arranged in a way that best promotes our national interest. I am sure that this Committee does not intend to restrict the Government from legislating coherently or in the national interest, but that may be the unintended consequence of amendments which swap “appropriate” for “necessary”.
I note that some of the amendments in this group contain wording suggested by the DPRRC in its report on the powers in this Bill. In particular, I was interested in the assertion that:
“The operative test in Clause 7 should be whether it is necessary to deal with the problem, not whether only one solution follows inexorably”.
I first highlight that I do not believe that these amendments break up the necessity process in the way that the committee intends. I also question the merits of breaking up the necessity test in the way that the committee suggests. In its report, the committee cites the example of a deficiency in which there is:
“A requirement to collect and send information that will no longer be accepted by the EU”.
The committee states that it,
“is clearly a deficiency that it is necessary to remove from the statute book: it cannot be right to retain a redundant legal duty that amounts to a waste of time, effort and public money”.
However, I question whether this change is strictly necessary, or whether it is merely appropriate. The committee asserts that it cannot be “right” for this arrangement to continue—and I agree with it—but is it strictly “necessary” that it be removed? What great harm, after all, would be done if the information were still sent? The statute book would continue to function, albeit illogically and not in the public interest. But is it necessary, in a strict legalistic sense, to have the statute book working logically and in the public interest, or are all our changes merely appropriate? In these sorts of instance we cannot with any certainty predict the way in which a court might rule. It is precisely to guard against such a decision that the Government cannot support the suggestion made by the committee.
Viscount Hailsham
Is the Minister saying that he will not accept these amendments because he might be defeated in court? If so, that is a thoroughly bad reason.
Lord Callanan
I think I have made my position clear on that but, nevertheless, I also said that we are listening and endeavouring to satisfy the concerns of noble Lords.
Amendments 73, 119 and 141 tabled by the noble Viscount, Lord Hailsham, and also spoken to by my noble friend Lord Lang, meanwhile used “essential” rather than “appropriate” to limit the discretion of Ministers in exercising the delegated powers. This really is very similar to the amendments which propose the use of “necessary”. I think that a court would likely interpret the meaning of “necessary” and “essential”—in this context—in much the same way and, therefore, I will not repeat the arguments that I have already made.
Lord Cormack
I beg my noble friend to talk to his ministerial colleagues and think again, otherwise the Government will suffer the most massive, crushing defeat when this comes up on Report.
Lord Callanan
I said at the start that I am setting out a position, but I have heard the messages that came to me from all sides of the Committee and I very much take on board the point that my noble friend makes. I shall state again that, despite their breadth, these are not powers designed to deliver major policy changes and they can only be read in light of their purpose. For Clause 7(1), that is to “prevent, remedy or mitigate” deficiencies arising from withdrawal.
Amendment 244A, tabled by the noble Baroness, Lady Taylor, the noble Lords, Lord Beith and Lord Dunlop, and the noble and learned Lord, Lord Judge, touches on a point to which I will return to in more detail later, but I will stress now the risks of introducing additional legal uncertainty by creating new and untested definitions to the law. However, I am conscious of the need for transparency in this process and we will look to see how, in line with developments and other legislation, we can ensure that ministerial decision-making about the appropriate exercise of the powers is more transparent to the Committee.
Amendment 75, tabled by my noble friend Lord Hailsham, allows me the opportunity to expand upon the reasons why we are taking the correcting power and to build upon the arguments made in previous days of debate. Areas of our domestic law, such as those relating to EU obligations, will be redundant when we leave the EU. The Bills repealed by Schedule 9 are an example of this. Some noble Lords will consider that having provisions that do nothing on the statute book is not harmful. Indeed, the Easter Act 1928, which was never commenced, continues to sit on the statute book with no effect and causes no harm. My noble friend Lord Hailsham and the noble Lord, Lord Campbell, also argued that there is no legal recourse under the use of powers under Clause 7. That is not strictly correct. If the threshold set out in the Act is overstepped the regulations can be struck down by judicial review.
Lord Campbell of Pittenweem
The noble Lord was helpful in trying to give an example for something else. Could he give an example of where something that was “appropriate” could not be covered by the principle of necessity?
Lord Callanan
I do not have any additional examples beyond the ones I have already given, but I will certainly write to the noble Lord with alternative information on that.
However, the Government and I believe that a majority of noble Lords in this House will agree that the statute book is not truly effective unless it is tidy. The Bill is designed to provide clarity and certainty on the law; if we cannot remove or correct these redundant provisions this goal will be undermined. However, having said all that, as I have set out, I would be very happy to engage in further discussions with noble Lords. I have very much heard the messages given from all sides of the Committee with a view to returning to this issue on Report. On the basis of those assurances, I hope that noble Lords will feel able not to press their amendments.
Lord Wilson of Dinton
My Lords, I thank the 13 noble Lords who spoke on the amendment, all of whom were unanimous in their support of the need to change Clause 7(1). There was a lot of support for the substitution of “necessary” for “appropriate”. I am not going to go through what was said because, first, I agreed with everything; and secondly, it was said so eloquently that it would be otiose for me to add to it at this hour of night.
The Minister has clearly heard the voices of so many noble Lords in favour of some change to Clause 7(1). I say respectfully that he seemed to be speaking with two voices. One was a clear, fierce defence of “appropriate”. I have to confess that I found some of it surprising. I would have thought, faced with EU retained law expressed in the euro, that that would be a deficiency that one needed to correct and that it would be necessary to correct it. However, I will study what the Minister said with interest. On the one hand he spoke with a fierce voice defending the present drafting. On the other, he referred three or four times to the need to discuss before Report. At one point, he said that he was sure that a mutually agreeable position would be found. We need to study exactly what he said. Against that background, I beg leave to withdraw my amendment.
Baroness Bowles of Berkhamsted (LD)
My Lords, when we discussed Clause 2 and the Constitution Committee’s amendments, I said I did not wish to exclude the three paragraphs that the Constitution Committee wanted to exclude; I wish to exclude them instead from amendment under this paragraph. With the discussion we just had about what is necessary rather than just appropriate, to put as much as possible beyond the temptation of amendment by the Government seems to be a good idea. That was the approach I outlined previously. As far as this clause is concerned, it is in line with the Constitution Committee and with the Bingham Centre report, and in view of the state of my voice, I think it is best if I just say that I beg to move.
Lord Callanan
My Lords, I am tempted to send some cough sweets to the noble Baroness to help her: she certainly has my sympathy, and I suspect the Prime Minister’s sympathy, for the difficult position she is in. I am grateful to her for the amendment and this debate.
The noble Baroness has proposed to limit the Clause 7(1) power so that it is only possible to correct deficiencies in domestic legislation in two circumstances. The first is where the deficiency is of any type provided for in this Bill and that the legislation was a statutory instrument made under Section 2(2) of, or paragraph 1A of Schedule 2 to, the European Communities Act. The second, for all other EU derived domestic legislation, is that inappropriate EU references are the only type of deficiency which may be corrected.
I understand the noble Baroness’s well-intentioned desire to, where possible, protect from amendment legislation which has already been considered in detail by this House. However, while Section 2(2) of the ECA has been a crucial tool in the Government’s implementation of our EU obligations, it is far from the only way the Government have implemented EU obligations in the 45 years of our EU membership. Indeed, many noble Lords have been vociferous in encouraging Governments past and present to do more under primary legislation and specific powers and less under Section 2(2). Furthermore, whether a deficiency is in primary or secondary legislation is not, I believe, a meaningful indication of the type of deficiencies which might arise in it, or the significance of the correction that needs to be made.
To be ready for exit day a large number of fairly straight-forward changes will need to be made to primary legislation in exactly the same way as in secondary legislation made under the ECA. For example, Section 42(5) of the Employment Relations Act 2004, concerning information and consultation, will require amendment as outlined in the draft regulations the Government have already published. This power relates to the implementation of a directive. This directive has already been implemented in our domestic law and the relevant implementing legislation will be converted to retained EU law by the Bill. Once the UK has withdrawn from the EU, this power will have no practical application. I hope noble Lords will accept that we need to be able to make appropriate corrections to such deficiencies. The power therefore needs to be broad enough to allow for corrections to be made to both primary and secondary legislation for the full range of deficiencies. Textual and technical changes must be made in primary legislation if we are to have a functioning statute book on exit day.
The Government’s contention is that what matters is not the status of the law that is being amended but the purpose of the amendment. Indeed, some provisions of secondary legislation made under Section 2(2) are extremely important, which is why the Government have provided for the sifting committee and affirmative procedure to ensure that all regulations are subject to the appropriate level of scrutiny. For example, much of the vital statutory protections of the rights of workers in this country lies in regulations made under Section 2(2) of the ECA. We have already published details of some of the corrections that will be required here, and I hope they have laid concerns to rest. They are also representative of the type of corrections that will arise throughout the statute book and will need to be corrected to ensure that important areas of law continue to function.
I hope I have persuaded the noble Baroness of the Government’s position that it is the substance of the change, not where it is being made, that matters, and that she therefore feels able—if she can do so—to withdraw her amendment.
Baroness Bowles of Berkhamsted
My Lords, I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will speak also to Amendment 82, which itself is amended—or, in truth, corrected—by Amendment 82A.
Amendment 80 is pretty simple and is very much in line with the amendments we have debated today, which aim to restrict the very wide powers that Ministers—be they Minister number 1 or number 109 —have dreamed up for themselves in this Bill. The amendment would remove from Ministers the discretion to extend the definition of what constitutes a deficiency in retained law. That is important, given that Ministers have taken considerable powers to correct what they consider to be deficiencies. So it would be a two-way gain for Ministers: first, they could extend what they define as a deficiency and then they could use their powers to correct it.
The main thrust of Amendment 82 is to prevent secondary legislation under Clause 7 from being able to change the Equality Act 2010 or subordinate legislation made under that Act, or, indeed, later legislation, as in Amendment 82A. Again, it is about not reducing the rights and remedies that are available under EU retained law. While we were drafting Amendment 82 we also put in wording to restrict the ability under Clause 7 to impose taxes, fees, charges and to create quangos or introduce new criminal offences under secondary legislation. However, as I have alerted the Minister, we will not deal with that at this point because three separate groups are coming up and we will discuss the issue of criminal offences and fees later. The important thing for now is not allowing Ministers to extend the definition of deficiency or to use the regulations under Clause 7 to change the Equality Act and the subordinate legislation that flows from it. I beg to move.
Baroness Ludford (LD)
My Lords, I support Amendment 80 in the name of the noble Baroness, Lady Hayter. I cannot speak for her, but my remarks will also encompass Amendment 80A in the name of my noble friend Lady Bowles who, as the Committee will appreciate, is not in a fit state to speak to her amendment, although it relates to Clause 7(3).
Clause 7(3) is rather strange. It was inserted by the Government on Report in the other place. I am trying to resist the word “sneaky”, but the Government gave with one hand and took with another. On 16 January, David Lidington said in the other place:
“The Government remain of the view that the power in clause 7(1) is crucial. We do not take delegated powers lightly, and we want them to be tailored as tightly to their purpose as possible. We have therefore listened to hon. Members’ concerns about the scope of the power in clause 7(1), and in bringing forward Government amendments 14 and 15, we have built on the amendment tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)”.—[Official Report, Commons, 16/1/18; col. 838.]
Amendment 14 was the one that led to the change in Clause 7(1) to put in “are” instead of “consist of but are not limited to”. So it was more specific on what ministerial powers could cover.
Baroness Whitaker
My Lords, I support my noble friend’s Amendment 82. Yet again it is the issue of using secondary legislation under Clause 7 to make changes, in this case to the Equality Act 2010 or to subordinate legislation made under that Act, or to reduce rights or remedies under EU retained law,
“in comparison with the position immediately before exit day”.
Your Lordships’ Committee made its views on the abuse of Clause 7 abundantly clear during the earlier debate. Surely the same reasoning applies.
Lord Beith
My Lords, I follow my noble friend Lady Ludford in querying what is intended by Clause 7(3) and hope that the Minister will be able to draw on his limited stock of examples to provide me with one—indeed, with something that fulfils this definition:
“There is also a deficiency in retained EU law where the Minister considers that there is … anything in retained EU law which is of a similar kind to any deficiency which falls within subsection (2)”.
In that case, why does it not fall within subsection (2)? Can the Minister give me an example of something which subsection (3)(a) would provide for but which subsection (2) has not provided for?
Baroness Goldie (Con)
My Lords, this has been a short but interesting debate covering an important point. When my ministerial colleagues in the other place moved the amendment that inserted into the Bill the subsection that Amendment 80 would remove, the Government’s reasoning was accepted by the other place without a Division. That is an onerous responsibility upon me, and I hope I can replicate that performance and satisfy any concerns the noble Baroness has.
As we heard at Second Reading, most of the House accept that the power in Clause 7(1) is essential but, was as said then, the Government are looking forward to using the expertise of this House to tighten any slack in the power and ensure that it is capable of neither too much nor too little. I have just addressed the importance of retaining Clause 7(3)(b), but I repeat that the Government believe we can be a responsible Government only by ensuring that we can provide for all the types of deficiency we discover.
Subsection (3)(a) provides that the meaning of “deficiencies” in Clause 7 includes those of a similar kind to those set out in subsection (2). The noble Baroness, Lady Ludford, and the noble Lord, Lord Beith, asked what this means and whether there are any examples. This ensures that, for example, deficiencies relating to arrangements between public authorities in the British Overseas Territories and the EU and its member states, or between the UK and the EEA and EFTA states are caught by the definition of a deficiency. They are not included in the list in subsection (2) but are very much of a similar kind to the types of deficiencies listed, and it is important that the power is wide enough to allow the Government to correct them. This House accepted at Second Reading the principle of resolving all the deficiencies in retained EU law using the power in Clause 7, and we cannot do this without both a type of sweeper—I think the legal term is “ejusdem generis”—and a power to provide for additional kinds of deficiency if they are later identified. I say to the noble Baroness, Lady Ludford, that that is why the clause is drafted the way that it is.
May I seek clarification from the noble Baroness, Lady Hayter? I was not quite clear whether she wanted to speak to Amendment 82 or whether she is forgoing that for the moment for the purposes of this debate.
Baroness Hayter of Kentish Town
I am speaking to only a part of Amendment 82 and to Amendment 82A —in other words, to the bits about not using Clause 7 to remove any rights and standards or to repeal or revoke the Equality Acts 2006 and 2010 or any subordinate legislation made under them. There is obviously much more in Amendment 82. There is stuff about criminal sanctions, raising taxes and setting up public bodies. I was making the point that I am not talking about those now because we have separate groups on those topics. The bit of Amendment 82 and Amendment 82A are about not using this power to make any changes under the Equality Acts.
Baroness Goldie
I am very grateful to the noble Baroness. I am looking at my speaking notes. It is a little difficult to disentangle the points to which she has just alluded. If the Committee will indulge me, I will perhaps try to cover the general points.
Baroness Hayter of Kentish Town
I emailed the Minister’s advisers very early this morning and spoke to them earlier, so I would hope they had got the Minister’s notes in the right place.
Baroness Goldie
I thank the noble Baroness. I shall soldier on as best I can with the material I have. By way of general comment on Amendment 82, I hope I can reassure the Committee that I understand the concerns many noble Lords have regarding the scope of the powers we are seeking to take in the Bill. I shall use this opportunity to allay, I hope, some of the concerns as we look at the general premise of this amendment in relation to the Clause 7(1) power.
The general concern is about the ability to create new public authorities, which was alluded to by the noble Baroness. Let me make it clear that we have been listening to Members of this House and the other place; the noble Baroness is not alone in having these concerns. As such, we have made it a priority to find a solution that will satisfy both Parliament and the objectives of the Bill, and the Government are looking very closely at whether the key powers need to be drawn as widely as they are in this regard. We will revisit this matter in more detail when we reach the amendments in the name of the noble Lord, Lord Newby, but I hope this satisfies the noble Baroness on this point for now and signals our commitment to listen to the concerns of noble Lords.
The noble Baroness, in her amendment, expressed some concerns about the power to create criminal offences. We will come back to this in more detail later in the debate on these clauses when we respond to the amendments in the names of the noble and learned Lord, Lord Judge, and the noble Viscount, Lord Hailsham. If the noble Baroness wishes me to do so, I will deal with that in more detail now, but perhaps that is one of the areas she is happy for us to deal with later.
The noble Baroness also expressed concern about not losing any EU functions. The Government are committed to ensuring continuity, but there are a small number of functions it would be inappropriate for us to transfer to a UK public authority after exit. Examples might include the functions of the Translation Centre for the Bodies of the European Union or the Authority for European Political Parties and European Political Foundations. The Clause 7(1) power makes provision to remove these functions, but only if, outside the EU, they were somehow deficient, not simply because the Government disliked them as a matter of policy.
The noble Baroness raised the important matter of maintaining rights, standards and equalities protections, and I want to make it clear to noble Lords it is not the intention of this Government to weaken these as a result of our exit from the EU. It is for that very reason that it is necessary for Ministers to have the ability to make adjustments to any relevant legislation to ensure we can continue to enjoy these rights, standards and equalities as we currently do when we are no longer part of the EU.
To reassure noble Lords of the Government’s commitment to ensuring transparency around any amendments made to equalities legislation, we tabled an amendment in the other place that will require Ministers to make a statement in the Explanatory Memoranda of all SIs made under this power and the Clause 8 and 9 powers confirming that they have had due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited under the Equality Act 2010.
Would the noble Baroness like me to respond on data protection? It is very helpful to get that reassuring shake of the head. In conclusion, I thank the noble Baroness for perhaps simplifying the matters immediately before us. I hope that the points I have raised in addressing her first amendment, and then those parts of her Amendment 82 she is concerned about, are enough to demonstrate the need for the power to have such scope and to be able to address all the deficiencies, including those alike to the types listed in Clause 7(2). In these circumstances, I urge the noble Baroness to withdraw her amendment.
Baroness Ludford
Before the noble Baroness, Lady Hayter, responds, forgive me, but I am not sure I have entirely grasped this. Are the Government going to have another look at Clause 7(3)? In the other place, the Government changed Clause 7(2) so that instead of saying that deficiencies “included” but were “not limited to” those in a list, it now says “the deficiencies are” the list. However, Clause 7(3) adds, “Oh, but by the way, we can do things ‘similar’ to those in the list”. The Minister has not explained why the Government cannot lengthen the list to obviate the need for a provision that says Ministers can do “similar” things. That is why I say the Government are giving with one hand, in Clause 7(2), but then coming back with Clause 7(3) and saying, “Oh well, we’ve limited ourselves there, but we’re going to expand our powers here”.
The noble Baroness referred to these changes being passed without a Division, but a bloc of five or six government amendments was voted on in one Division. I am not aware that in the other place they really distinguished between the amendments, because the one tightening this up was lumped in with the one expanding it. I do not know whether I am being overly cynical here, but it seems to me that a fairly clever government operation in the other place gave with one hand and took with another. I would like an assurance that the Government will have another look at this.
Baroness Goldie
I would say to the noble Baroness that our elected counterparts in the other place were able to scrutinise this Bill in detail. The Government were transparent in what they were doing when they brought forward the amendment that passed without a Division. Indeed, it was for Members of that place to raise objection to the way in which the amendments were structured, and I understand that no such objections arose—and at the end of the day, it passed without a Division.
Let me deal with the substantive point raised by the noble Baroness. I was trying to explain that if we accept the principle, as the House appears to, that we need this corrective provision to let us deal with deficiencies on withdrawal, the Government are trying to ensure that there is a flexibility. I made it clear in responding to the noble Baroness, Lady Hayter, that this is about having the powers to do what we need to do, but being conscious that we do not want these powers to enable Governments to do too much. It is equally important that they are empowered to do what they need to do and that the powers do not restrict them so that they are only able to do too little.
Part of the difficulty with the complexity of what confronts the statute book is that there is a degree of unpredictability in the events with which we are dealing. We do not know quite what difficulties may arise. That is why there is a desire to build in the flexibility created by Clause 7(3). I did endeavour, in responding to the point raised by the noble Lord, Lord Beith, to give an example of the kind of things that are not in Clause 7(2) but would actually be covered by subsection (3). There is no further comment I can make to the noble Baroness, other than to repeat my reassurance that the Government are anxious to work with this House in trying to make sure that this clause is responsible, but also workmanlike and capable of managing the difficult situations that may arise, so that action can be taken to correct deficiencies without harm being caused because the power does not exist to do that.
Lord Adonis
I took it as quite a significant move on the Government’s part for the noble Baroness, Lady Goldie, to say that she was open to discussions about limiting the power to create new public bodies—and it is one that we welcome. That power, I know, has caused concern in the House. The noble Baroness has shown herself to be so emollient that we very much hope to hear a great deal more from her in the next six days of Committee. We will welcome her presence at whatever hour of the night she wishes to speak.
Baroness Goldie
I am not one to spurn the comments of attractive gentlemen, particularly when they are honeyed compliments uttered by the noble Lord, Lord Adonis. As I have said in previous debates, I may not always be able to acquiesce on points that he makes, but I understand that my noble friend the Minister is prepared to look again at the creation of new bodies. I cannot provide further detail at this stage, but it is an area where we have an open mind.
Baroness Hayter of Kentish Town
I thank the noble Baroness for that. Obviously, we will come on to a grouping of amendments specifically about public bodies—perhaps even tonight. I will deal firstly with the amendment to take out Clause 7(3) on page 5. I was a little worried when the Minister said that it allowed some flexibility—which I take to mean wriggle room, or wanting to do something that is not quite allowed for. The noble Baroness, Lady Ludford, described the problem of subsection (3) better than I could. Our concern is partly that we are again back to the implications of where the Minister considers something—which is a very wide way of saying that where a Minister considers, without any test, they can then define something as “similar” to another deficiency. We may have to return to this, because I do not think that it is robust enough.
Her particular example did not help her case, given that Clause 7(2)(d)(i) involves the EU, an EU entity, a member state, or a public authority and a member state. EFTA and NATO must be the only other two bodies: could we just not write those in? To put in a whole clause just to allow for EFTA does not seem to me, with all that discretion, very appropriate. So I think we may want to return to that.
Amendment 82, as amended by Amendment 82A, is very much about not using regulations to amend, repeal or revoke either the Equality Act 2006 or the Equality Act 2010—or, indeed, to reduce any right conferred on a person by retained EU law, if it were to be made less favourable. The Minister may have said that that was not the intention but, without the words in our amendment, clearly that would be possible. For the moment, I hope that we can revert to the specifics, such as public bodies, taxes and criminal offences and put that to one side. However, we may need to return later to subsection (3). I beg leave to withdraw the amendment.
Baroness McIntosh of Pickering (Con)
My Lords, I am most grateful to speak to Amendment 81, which for these purposes is joined with Amendments 95, 96, 100, 227C and 244. I see that the noble Lord, Lord Bassam, is not in his place. I would be interested to hear the content of the other amendments, but they seem to make very positive noises that there should be no increase in legislative burdens on individuals in businesses; that we should not exceed what is essential and not impose greater burdens; and that the Government should seek to make only technical changes and not to change policy materially.
I speak specifically to Amendment 81, which relates to deficiencies arising from withdrawal from the EU and considered in this group. The difficulty that I have with the wording as it stands in Clause 7(4) is partly because it contains a double negative and does not seem to be plain English, saying,
“retained EU law is not deficient merely because it does not contain any modification of EU law”—
and so it goes on. So partly the amendment is to express what is clearly meant, to seek greater clarity, but it also goes to the timing of the laws deemed to be deficient.
I think that it was my noble and learned friend Lord Mackay of Clashfern who said earlier that it was for Parliament to veto any statutory instrument put forward by government through the normal procedures of negative or affirmative resolution. Someone else in an earlier debate said that it should be the right of Parliament to be able to scrutinise amendments that fall under this clause—and, I would argue, particularly under Clause 7(4). So the question really to the Minister is to ask, if there is to be this scrutiny, at what stage this scrutiny would take place. My understanding is that the Minister is going to be able to act before Brexit to be able to prevent a deficiency from arising. My question is at what stage that would be and how Parliament will have the opportunity to scrutinise that. Also, if failure of retained EU law is a type of deficiency, and a failure means that the law does not operate effectively, we have already established that deficiency could cover a wider range of cases where it does not function appropriately or sensibly. Guidance as to who will actually decide what the deficiency is and when it will apply will be extremely helpful.
I mentioned at the outset that subsection (4) is not immediately clear. One turns to the Explanatory Notes and particularly paragraph 120, which says:
“Subsection (4) provides that the retained EU law in the UK is not deficient just because the EU subsequently makes changes to the law in the EU after the UK has left, or planned changes come into effect after exit. The law is being preserved and converted as it was immediately before exit day. The EU might go on to make changes to its law but those subsequent changes and the consequent divergence between UK and EU law do not by themselves automatically make the UK law deficient”.
I am not sure that this entirely clarifies the situation, nor does paragraph 116, relating to the earlier subsection (2). I want to probe the Minister to perhaps tease out what is the legislative deficiency, whether there is more than one stage at which it can apply, and who actually decides. If it is the Executive, at what stage can Parliament call them to account to scrutinise that? I hope that, in summing up on Amendment 81, the Minister can clarify, to create greater legal certainty, the legal basis for the functional restriction—where this is contained in a directive and therefore not retained or transposed into domestic law—to be described as a deficiency.
Baroness Bowles of Berkhamsted
My Lords, I speak only to Amendment 227C, just to say that this is a sort of “double omnibus” amendment in that it covers the whole Bill and also puts together, in its proposed new paragraphs from (e) onwards, some ideas about how to address in a generic way some of the concerns that other noble Lords have expressed in what I call the “Thou shalt not” clauses. Clearly, we cannot go through the Lobbies 20 times to deal with them all but, if this kind of formulation is adopted, we could achieve something that was both votable and covered a lot of the common ground that there appears to be when looking at other amendments, many of which will be spoken to later. I will limit my comments to that for now.
Baroness Hayter of Kentish Town
In the absence of my noble friend Lord Bassam, I just want to encourage the Minister—though I am sure it is already in his notes—to comment on Amendment 244, which appears in this group. It requires that:
“The statement under sub-paragraph (2) must include a certification that the regulation does no more than make technical changes to retained EU law in order for it to work following exit, and that no policy decisions are being made”.
I appreciate that the Minister and other Ministers have said all the way along that this is not about making policy, so it should be an easy certification on this occasion for a Minister to sign. I hope that that might be accepted.
Lord Callanan
My Lords, Amendment 81 in the name of the noble Baroness, Lady McIntosh of Pickering, concerns the core concept of this Bill, namely that it preserves and makes functional the law at the moment of the UK’s exit from the EU. As the long and learned debates in this House and the other place demonstrate, this is of course something much simpler said than done. We can all agree that the law in the UK should not be considered deficient simply because the EU adopts a new law once the UK has left. The Bill reflects that with the provision in Clause 7(4) and, therefore, this would not constitute a valid trigger for the use of the power in Clause 7(1).
It is also the case that the law is not deficient simply because EU law, as is often the case in some areas, contains provisions that are adopted before our withdrawal but only come into force or apply after exit day. This reflects the approach taken in Clause 3, which provides for the conversion of direct EU legislation that is operative in the UK immediately before exit day. As the Government set out when we debated Clause 3, we believe that it is right that we incorporate only that law which is operative at the time of our exit. It is surely not taking back control to this Parliament and the devolved legislatures if we simultaneously preserve the automaticity of new provisions of what was EU law becoming operative in our law, months or perhaps years later. It would be unacceptable for EU law provisions to flow automatically into the UK many years after we have left and would undermine the clarity and certainty this Bill is designed to provide. That is why Clause 3 preserves only the law as individuals and businesses were bound by it immediately before exit day, and why that decision is reflected in Clause 7(4), which makes it clear that the law is not deficient simply because it does not contain planned future changes to EU law. In preserving EU law, the Government have drawn a line in the legal sand on exit day. Wherever the line was drawn, the outcomes would, of course, please some and not others. I note that the controversial ports regulation, although already in force, will enter into application only days before exit day. Clause 7(4) merely reflects this line in the legal sand.
Baroness Hayter of Kentish Town
Although Amendment 244, in the name of my noble friend Lord Bassam, asks for,
“a certification that the regulation does no more than make technical changes … and that no policy decisions are being made”,
I take the point that policy choices may be being made. Although it is not in this group, Amendment 244A says that there would be a certificate saying that either the change was just technical or a policy choice has been made. That amendment may not be in this group, but I am interested whether the Minister is closing his mind to the idea that there should be a certificate from the relevant Minister. That is what this amendment aims to do.
Lord Callanan
No. As I have made clear throughout the Bill, our minds are not closed on many of these matters. I think I gave the noble Baroness an example. It is a difficult distinction to draw about what is making policy or what is a policy choice. As I said, the choice between two regulators can be said to be a policy choice, but it is certainly not our intention to use any of the power in the Bill to massively expand on different levels of policy. It is our intention to impose a snapshot on exit day and ensure that the law is compliant and tidy, as we have said.
Baroness McIntosh of Pickering
My Lords, I am most grateful to the Minister and to all who have contributed to this little group. While I am grateful to my noble friend for his reply, I am not sure that he addressed the question of timings, and I am slightly concerned about the scope for judicial reviews. I end with the comment that the wording I seek to delete refers to the earlier Amendment 18, on which we had a lengthier debate, and to which I will return on Report. However, I beg leave to withdraw the amendment.
The Lord Speaker (Lord Fowler)
Amendment 82A, which is an amendment to Amendment 82, therefore falls.
Amendment 83
Lord Newby
Lord Newby
My Lords, this amendment simply asserts a long-established principle of British practice and law, namely that public bodies are created via primary legislation. There are good reasons for this principle. Public bodies perform important functions. They cost money to establish and run, and they can often themselves levy fees and charges or bring enforcement actions in the courts. They typically have quite a big impact on the people and organisations that they regulate. They are, in short, important. They should not be capable of being established via secondary legislation for the simple reason that such legislation does not allow their purposes, scope and operating practices to be subject to adequate debate.
In the Commons, debate on any statutory instrument is limited to 90 minutes. While we can take slightly longer in your Lordships’ House, the nature of statutory instruments, as the Minister knows, is that they can only be approved unamended or rejected outright, except in the most extreme circumstances. If we attempt, as we very rarely do, to reject them outright, we are accused by the Government of exceeding our powers, and the noble Lord, Lord Strathclyde, is wheeled out to threaten us with dire consequences.
I had rather hoped that the noble Lord, Lord O’Donnell, who had planned to be in his place, was in his place, because he wrote the Cabinet Office guidance which clearly explains to Ministers that they should use primary legislation when establishing public bodies. However, in order to check whether I was right in thinking that it was normal practice to establish public bodies by primary legislation, I had a look at the public bodies that the Government proposed to abolish in the Public Bodies Act. These were a very wide range, from the Administrative Justice and Tribunals Council to the Victims’ Advisory Panel.
I asked the Library to discover by what power this random cross-section of public bodies had been established. Of the 34 listed in Schedule 1 to the Bill they looked at 27. They were without exception established by primary legislation, and while it is unsurprising in the case of larger entities such as the Competition Service—established by the Enterprise Act 2002—it was also the case with relatively insignificant ones such as the Home Grown Timber Advisory Committee, established by the Forestry Act 1967, or the Railway Heritage Committee, established by the Railway Heritage Act 1996. So what the Government are proposing in the Bill is without precedent. Certainly, any body established to fill a gap created by our exit from the EU would be more important than some of those I have already mentioned.
Is such a departure justified? I do not, as a matter of principle, believe that it is, but if it were to be justified, the only grounds I could imagine the Government plausibly advancing were that there were simply far too many bodies to be established by primary legislation by exit day. At first sight this argument looks as though it might have some merit. There are, excluding the EU’s core institutions such as the Commission and the Parliament, some 54 other EU bodies described by the EU as,
“specialised agencies and decentralised bodies”.
Virtually all of them are set out in Amendment 263, in the name of the noble Lord, Lord Whitty. But the truth is that we will not need to replicate anything like that number.
Clearly, we will not need to replicate the functions of the European Police College, or the Translation Centre for the Bodies of the European Union, or the European Institute for Gender Equality. We will not need to create new bodies in the area of financial regulation. In some cases, the question of whether we need to create new bodies or not is extremely unclear. The Prime Minister, in her speech last week, suggested we would be seeking associate membership of three bodies, which we are already members of by virtue of our European membership—namely, the European Medicines Agency, the European Chemicals Agency and the European Aviation Safety Agency. It is clear that, if we stayed in those bodies, the need to replicate them would be very small, if needed at all. However, the negotiating mandate published today by the European Council states that:
“The European Council further reiterates that the Union will preserve its autonomy as regards its decision making and excludes participation of the United Kingdom as a third country to EU institutions, agencies or bodies”.
It seems that, since the point at which I first drafted my speech for this evening, we may need to create three more bodies than I had originally envisaged. None the less, the total number we are talking about is substantially smaller than 54 and, almost certainly, is less than 10. Indeed the Government have already admitted that some bodies which will need to be created, will be created by primary legislation. We heard earlier today, when we were talking about environmental protections, that there will be an environmental protection Bill with a new environmental body created within it which replicates some of the functions of European environmental agencies.
So, despite the lack of clarity, we are talking about a relatively small number of bodies for which primary legislation should be needed—and there is almost certainly time for that legislation. Before leaving the subject, I would like to refer back to the debate we had earlier, when we discussed Euratom, and also discussed Amendment 263 in the name of the noble Lord, Lord Whitty. That debate asked an extremely important question of the Government, which was: will they publish strategies explaining how these various bodies are to be replicated, or not replicated, and what we should do to fill any gaps, so that we know what is happening? The answer given by the noble Lord, Lord Callanan, consisted of a single sentence. He said that it,
“would be neither helpful to Parliament, nor in the national interest”.—[Official Report, 21/2/18; col. 252.]
I suggest to the noble Lord that both those statements were false. It will be in the interest of Parliament to know how the Government intend to fill gaps in respect of public bodies caused by our leaving the EU. For the noble Lord to assume that he knows what is in the interest of Parliament is rather extraordinary. What he really means is that it is not in the interest of the Government to say what they will do to fill the gaps, because they clearly do not know. They do not know where they will get to in the negotiations and I suspect that, regarding some of these bodies, they do not know, full stop. I invite the Minister in his reply this evening to be a bit more gracious towards the noble Lord, Lord Whitty, and his suggestion, and to commit the Government to come forward with some suggestions as to how they are going to fill the gaps that they are about to create.
On the amendment itself, it is very straightforward. There is a well-established principle in British practice and law that public bodies are established by primary legislation. The Government are seeking to tear up that convention for no good reason and they should desist.
Lord Adonis
My Lords, the difficulty with having been in this House for a number of years is that all these debates come round and round. I wish that the noble Lord, Lord Newby, was right in saying that this is the first time we have been faced with sweeping powers for Governments to reform public bodies by secondary legislation. He may remember that one of the first acts of the coalition Government in 2010 was to introduce the Public Bodies Bill. I vividly remember the debates on that Bill because it gave sweeping powers to the Government to abolish public bodies by statutory instrument. Because it is the job of the Opposition to oppose draconian attempts by Governments to seize Henry VIII powers, those of us on this side of the House made exactly the same speech as the noble Lord, who was then sitting on the Bench opposite, has made, saying why that should not happen.
There was then one of those classic showdowns between the House of Lords and the House of Commons. From memory, it centred on whether the Youth Justice Board, which at that time was threatened with abolition, should be capable of being abolished and whether it should be done by primary or secondary legislation. We all thought that was a very bad idea because it was doing such a brilliant job of dealing with the problem of young offender institutions. I believe we saved the Youth Justice Board, and all the brilliant developments in penal policy that we have seen in this country in the last eight years, which have been such a phenomenal success, are no doubt due to its survival at the insistence of the House of Lords in 2010.
The proposal put forward by the noble Lord is all immensely worthy and I obviously support everything he has said. The power grab by the Government which the noble Lord, Lord Callanan, who I see is now back in his place, is trying to undertake is utterly reprehensible. I thought I heard the noble Baroness say earlier that the Government are prepared to move on this. I hope that the noble Lord and the noble Baroness have been speaking so that we can bank this great act of liberalism on the part of the noble Lord. It will be the first one that we have heard since he assumed his current place but we would welcome it greatly.
I simply note that in the great scheme of the United Kingdom leaving the European Union, this is a small issue. It is a classic House of Lords issue where we will probably achieve a great victory. It will make no difference whatever in the great scheme of things but I suppose that is why we are here.
Lord Hannay of Chiswick (CB)
My Lords, I rise to take the place of my noble friend Lord O’Donnell, who unfortunately cannot be here, to make it clear that there are quite a few others on these Benches who share his views. I would not be so unwise as to talk about the collectivity of Cross-Benchers—I have been around long enough to know that that does not exist—but there are quite a few, and for the same reason. I hope that when he comes to reply to this debate, the Minister will not again trot out the “housemaid’s baby” argument that he has been using all evening—that it is a very small one and nothing terrible is going to happen, et cetera. We are talking here about some quite significant decisions which, as the noble Lord, Lord Newby, said, have invariably, and quite correctly, in the past been taken by primary legislation.
I know—this is very welcome—that in her Mansion House speech the Prime Minister rather reduced the number of public bodies that might have to be created following our leaving. She has recognised that we would do much better to stay in a number of the public bodies that already exist in the European Union, and we will see whether that bears fruit in the negotiations. That might reduce the list but it does not remove the problem. Therefore, this amendment deserves wide support from all round the Committee. It would be an extremely unwelcome and dangerous precedent if we started delegating the powers to set up these public bodies to a government Minister with only a resolution available and the nuclear option to stop it. I support the amendment.
Lord Whitty (Lab)
My Lords, as the noble Lord, Lord Newby, was kind enough to refer to my amendment, which was probably misgrouped at an earlier stage when we were discussing Euratom, I wish to underline the points that he makes. At that time I asked the Minister to set out for Parliament the approach to the EU agencies that the Government were going to take in the negotiations. Frankly, the noble Lord was far too dismissive of that approach, and it would do him some good now if he were to say that at some point during the course of the Bill the Government will set out the line that they will take. After all, as has been said, the Prime Minister has set out her line in relation to some of those agencies. Unfortunately, within 48 hours, the EU has effectively said, “Sorry, that is not on”—not only for the post-transition period but for the transition period itself. While we were continuing to follow the rules and procedures of those agencies, we would no longer take part in their activities. We have an issue here.
I was a bit diffident about the coalition’s Public Bodies Bill—I did not want to embarrass the noble Lord, Lord Newby, who has been so kind to me—but, as my noble friend said, the achievement of the House of Lords was to knock out an enormous schedule. The Chief Whip, who was the Minister in charge of the Bill at that time—he is now in his place—looks less fraught with this Bill than he did when he was dealing with the Public Bodies Bill. In the end he wisely convinced his colleagues that he had to drop the huge schedule that gave carte blanche powers to the Government to abolish or tweak the responsibilities of a host of public bodies. That Bill was to abolish bodies or alter their remit; this Bill is to set up entirely new bodies. Unless we do that knowing what the overall approach is, this House cannot give the Government that degree of power.
Mention has been made of the new environmental body. Strictly speaking, under this clause as it currently stands, the Government would be able to establish, under secondary legislation, the kind of body that the noble Lord, Lord Krebs, who is no longer in his place, was arguing for earlier—a body so powerful it could sanction other public bodies, including the Government, if it was able to reproduce the powers that presently rest with the European Commission. That is an enormous power, which this House would not allow the Executive arm of government on its own without primary legislation conducted through the two Houses.
I recognise that there is a timescale problem for the Government, but might it be possible to set up some of these bodies in shadow form? If there are 10 bodies, as the noble Lord suggests, there may be a need at least to stop the process before the final passage of this Bill. To have permanent public bodies to regulate large swathes of our public life, industry and personal behaviour—even if there are only a dozen of them—would require primary legislation. This House needs to assert that it does and the Government need to accept that.
Lord Beith
My Lords, I support my noble friend Lord Newby on one specific reason why it is primary legislation that we use, and should use, for the creation of public bodies, even in these circumstances. He referred to the somewhat limited procedures in both Houses, but particularly in the Commons, for dealing with statutory instruments, but one abiding characteristic of them is that they do not admit of amendment. When a public body is being created, even in the short timescale we are talking about here, its remit, terms of reference, composition and the powers it can exercise are incapable of amendment. The idea that the Government would produce so perfect a form that it would not benefit from amendment, or even discussion of amendment, is so fanciful that I am sure the Minister will not advance it. Surely primary legislation capable of amendment, even if addressed with greater speed than normal because of the circumstances, is the only defensible way of doing something as extensive as creating a public body.
Baroness Altmann (Con)
My Lords, I have added my name to these amendments. I believe that public bodies should be established by primary legislation. Parliament must have the opportunity to properly scrutinise and access the expenditure associated with trying to replicate bodies to which we already belong. The Bill, and in particular Clause 7, contains elements that are frightening to those of us who believe in parliamentary democracy. Handing such powers to the Executive is a gross dereliction of duty. I encourage my noble friend to urgently ask his department to reconsider the Government’s current intention to leave so many excellent EU agencies and try to recreate our own versions.
Baroness Whitaker
My Lords, it must be inherently undemocratic for bodies that have significant obligations, for instance under the Equality Act or the Human Rights Act, not to be set up with the full parliamentary scrutiny of primary legislation, so I support these amendments.
Baroness Hayter of Kentish Town
My Lords, I think the good news is that we heard a hint earlier that this might be one of the areas where we are going to hear a bit of movement tonight. If the Chief Whip will allow us to go home after this group, we will be sent home in a very happy mood.
My name is also on these two amendments and I will not make the case again, because the noble Lord, Lord Newby, made the clearest of cases against the use of secondary powers to create new quangos, with others adding similar reasons for why this is not just a power too far but is in breach of government guidelines.
I will add only two points. First—this is a slight gripe, I am afraid—in answer to my Written Question as to whether there were other examples of NGOs established by secondary legislation, the noble Lord, Lord Young of Cookham, said that it was not possible to answer other than “at disproportionate cost”. But the Government must have known why I was asking this Question—they have a brain—and I would have thought that if there were some public bodies set up by secondary legislation they could have found a few examples. This was some time ago. Unfortunately it is an undated letter—like many I get from the Government —but it is HL1651, so I think it was probably last year that I asked it.
My second point—and in a sense it is really the point touched on by the noble Lord, Lord Beith—arises from my experience both as a consumer representative and as a former member of various regulatory bodies set up always by statute. It is simply to say that the very way we establish those bodies—whether it is the Charity Commission, the Competition Commission, the Legal Services Board or the National Consumer Council of which my noble friend Lord Whitty was such an eminent chair until the Public Bodies Act abolished it—affects how they do their job. The founding statute will spell out their task and set out the “have regards to” that influence how they set about their work. It will also define who sits on their boards, how they are appointed, to whom they report and whether, for example, they have a duty to heed consumers in the relevant industry, the regulated industry itself, the employees, the wider social considerations such as the environment or things like that—and indeed their degree of independence from the Government. It is a crucial part of the function of many public bodies.
Such limitations on the powers of those public bodies, and the requirements for how they operate, are written in primary legislation. They can be discussed carefully, they can be amended—as we did before with others, as the noble Lord, Lord Beith, said—they can be debated in this Chamber or in the other place, and they could have pre-legislative scrutiny. For example, setting up a new public ombudsman—as the Member in the other place Mr Jenkins has been recommending—could come by a Bill and could be amended after consultation with the relevant interested parties. That is the way that we should set up public bodies. Instead, this Bill says to a Minister, “Well, you decide. You decide how to set it up; you decide how its board will be established; you decide who to appoint it—probably you could decide to appoint your friends to it”—and Parliament will nod it through. That is not good enough and this power must be dispensed with.
Lord Callanan
My Lords, I welcome the opportunity to respond to the debate, if only to confound all the prejudices of the noble Lord, Lord Adonis, that I am some inflexible hardliner who never gives him anything he might want and that only my noble friend Lady Goldie can—I was going to say “satisfy him”, but perhaps I should not use that word. He could not put a cigarette paper between us, by the way. She might do so with more charm than me, but we are saying essentially the same thing.
I understand that a number of noble Lords are concerned about the scope of this power and I reassure your Lordships that the Government are listening to those concerns. When Clause 7 was drafted, we thought it would be only sensible for the sake of contingency to include in its scope the ability to establish new public authorities to ensure, as many amendments in the other place sought to ensure, against losing any important functions as they are transferred over from the EU, as no such public authority may currently exist in the UK. Certainty and continuity are, after all, the watchwords of the Bill.
We have been clear that our preference will always be, where possible, to transfer any functions returning from the EU to existing bodies in the UK, but it has proven necessary to legislate in parallel with negotiations because of the strict Article 50 timeline. Therefore, we do not know at this stage exactly which functions are returning. We must make this legislation without prejudice to those negotiations, where, as the Prime Minister said in her Mansion House speech last week, we are looking to continue a productive relationship with various EU bodies as part of our deep and special partnership.
The noble Lord, Lord Whitty, asked about our strategy towards the agencies. Where there is a demonstrable national interest in pursuing a continued relationship with any EU body or agency, the Government will consider carefully whether we should do so. However, as he knows, it is ultimately a matter for negotiations. We remain committed to keep Parliament as fully informed as possible without prejudice to our negotiating position.
However, we already know of one function that we expect to return to the UK and which it is agreed does not sit happily with any existing public body: our environmental protections. This prompted the Secretary of State for Environment, Food and Rural Affairs to announce our intention to consult on a new, independent and statutory body to advise and challenge the Government and potentially other public bodies on the environment—we discussed this extensively earlier—stepping in when needed to hold these bodies to account and enforce standards. As such, we need to retain the power until we can be confident of delivering all necessary legislative changes without it.
It is for this reason that I am sorry to say that we will not be accepting Amendments 83 and 94 in the name of the noble Lord, Lord Newby, which seek to remove this ability from the scope of the power. The Government have a responsibility to safeguard against the potential disruption and confusion caused to businesses and individuals as we exit the EU, and we believe that the ability to create new public authorities plays a big part in ensuring this. However, the Government also recognise their responsibility to Parliament in listening to Members’ concerns regarding the legislation it seeks to pass. Therefore, I can assure noble Lords that the Government are working hard on finding a resolution to this matter that will satisfy the concerns of noble Lords—maybe even the noble Lord, Lord Adonis—and we will revisit it on Report. In the meantime, with those assurances, I hope the noble Lord will be able to withdraw the amendment.
Lord Newby
My Lords, I am most grateful to everybody who has spoken in this debate and to the Minister for his reply. On several occasions this evening he has managed to combine Dr Jekyll and Mr Hyde in the same speech and he has repeated that performance here. I am pleased, none the less, that the Government are considering how to deal with this issue. The only thing that slightly concerns me, both in this case and others where we have had the same response from the Government Front Bench, is that that clock is ticking quite quickly towards Report. The fact that the Government are thinking about it is better than their not thinking about it, but we will soon come to a point at which their thoughts need to be crystallised in something that we can look at.
The noble Lord, Lord Whitty, made an extremely sensible suggestion for how we can deal with some of these issues in the short term, with the establishment of shadow bodies, and I hope that is one of the options the Government will consider as they move forward. We shall return to this, in one form or another, on Report, but for this evening I beg leave to withdraw the amendment.