European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 6th sitting (Hansard - continued): House of Lords
Monday 12th March 2018 Lords Chamber

[Viscount Hailsham]

My Lords, I shall speak briefly to the three amendments in my name, Amendments 109, 134 and 188. These are intended as sunset clauses but, as I do not want them to be sunrise clauses, I intend to be extraordinarily brief.

Those of your Lordships who have been in Committee during debates on Clauses 7 to 9 will know that I am very unhappy about the process those clauses attract. For example, the powers within those clauses are very widely drawn, the scope is considerable, the regulations are made by secondary legislation with very limited scrutiny, both parliamentary and ministerial, and they are triggered by a test—the test of appropriateness—which I regard as wholly unsatisfactory. For all those reasons, my view is that the regulations made under the regulation-making powers should die two years after Brexit and should, if necessary, be replaced by primary legislation. That is my suggestion to the Committee, and I hope it commends itself to your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I have Amendments 111, 137 and 192 in this group and share the unhappiness that has just been described. Mine is a narrow but, I think, important point.

The thrust of most of the amendments in the group —not the noble Viscount’s—is about consultation and transparency. You do not have to spend long working in Parliament to realise that scrutiny very much depends on the input of stakeholders—I hate the term but I cannot think of a better one at this time of night. They assist us to understand how things work in practice, both with technicalities and wider issues. That is not to say that I do not have great admiration for parliamentary counsel and the lawyers working in the departments, who are most concerned with statutory instruments, but my amendments would require consultation on the regulations provided for by Clauses 7 to 9. This should all be a co-operative venture, with stakeholders contributing at an early stage, not least for the reason that the regulations are statutory instruments and not open to amendment, so you have to get it right from the very start.

I was a member for some time of the Secondary Legislation Scrutiny Committee, which received a lot of very valuable representations—lobbying, if you like. I suspect we will not hear comments in support of Amendment 228 in the name of the noble Lord, Lord Adonis, about the Cabinet Office code, but I support the application of the code to the regulations. We may well be told that of course the code will apply. I have to say that in my time on the committee, we undertook quite a lot of work on the application of the code in practice and were quite critical of the responses we received from the Cabinet Office. One of our criticisms was that when consultation was undertaken—which it was not always—on the statutory instruments we were considering, the Government did not publish the responses to the consultation before they published the statutory instrument, so the work was not as helpful as it should have been.

Other amendments in this group are more detailed. Mine is not very elegant. I am not proprietorial about it but I wanted to raise the subject because some provision is necessary and, if I may say so, appropriate. It is a step that is very easy to miss out and I hope we will not be told that all the regulations in question are simply about technicalities and that stakeholders would have nothing to add to the exercise. Practitioners in almost every area may see what is workable in proposals being put forward, as well as substantive points.

[Baroness Young of Old Scone (Lab)]

My Lords, I shall speak to Amendment 227A in my name, which is also supported by the noble Lords, Lord Lisvane, Lord Tyler and Lord Judd. The amendment is intended to be helpful to the Minister, although it is unlikely that he will regard anything as helpful at this time of night. Nevertheless, it is intended in the spirit of helpfulness to ensure that the statutory instruments that the Government are proposing turn out to be correct and effective. Many of the changes made by the statutory instruments will be technical and potentially uncontroversial but some will involve policy choices. The aim of my amendment is to ensure wider consultation on statutory instruments before they are formally laid.

The nature of the challenge is quite severe. There will be an awful lot of them—potentially 1,000. I have been looking primarily in the last year at the number that will be required in Defra alone—over 100—on environmental issues. They will need to come thick and fast, and in many cases they are being dealt with in departments by staff who have only recently been recruited. Having seen these departments shrink in times of austerity, lots of people are now being recruited, some of whom are old faithfuls but some of whom are rather new and probably not as well acquainted with the policy area as we would like.

So there is a risk of two things: one is cock-up, if noble Lords will pardon the unparliamentary language—things just going wrong because of the sheer volume and pace; and the other is conspiracy. A large number of the Defra SIs will be roll-ups of a whole variety of issues. I am being ignoble in suggesting that the Government might hide under a pile of harmless stuff the odd thing with a slight curveball in it, but increased transparency and consultation would help reassure people that no fast ones were being tried.

The noble Baroness, Lady Hamwee, pointed out—and it is inalienable—that the process of both the affirmative and the negative procedures means that once measures are formally laid there is very little room for manoeuvre, so it is important that this consultation happens in advance. I thank the noble Lord, Lord Callanan, for his letter of 20 February, following Second Reading. It provided more information but offered only that the Government would make efforts to publish a sample of statutory instruments in draft where appropriate. That rather misses the point, which is to let loose on these drafts expert eyes from across a variety of sectors of stakeholders to help the Government with that checking process to make sure that nothing has been missed, there has not been a cock-up and the policy intentions have not been perverted in any way. I hope the Minister will consider this and see it as a genuinely helpful proposal.

--- Later in debate ---

[Baroness Young of Old Scone]

I am not sure that the evidence stacks up on that. I have been seeking clarification from Defra for over a year now on just a simple list of the issues that might be subject to statutory instrument, and I have been unable to get that from the department. Perhaps the Minister might like to prod departments to reflect the terms she just stated.

[Baroness Hamwee]

My Lords, I too asked for a list of necessary statutory instruments from the Home Office, and the Parliamentary Answer was that the work had not been done to calculate the number.

[Baroness Goldie]

I say to the noble Baroness, Lady Young of Old Scone, that it is a pleasure to be asked to do the prodding rather than be the recipient of the prodding, which has certainly been my sensory experience standing at this Dispatch Box. I understand her concerns and will certainly relay them to my noble friend Lord Gardiner.

Similarly, I will refer the point raised by the noble Baroness, Lady Hamwee, to my noble friend Lady Williams. I understand the concerns; there must be a degree of frustration. It may of course simply underpin the enormity of the challenge confronting departments, in that at this stage it is extremely difficult to try to map exactly what lies ahead. Some of it might be predictable but some of it is unknown and will depend on the negotiations. However, I undertake to do what I can to seek some assistance.

The requirement in the amendment of the noble Baroness, Lady Hamwee, for relevant stakeholders to be consulted on all the provisions contained within all statutory instruments made under Clauses 7, 8 and 9 goes, I believe, beyond what is reasonable in this instance and belies the nature of those instruments. I appreciate the concerns that we have heard throughout this debate about the potential breadth of the power—something that clearly concerns my noble friend Lord Hailsham—but I hope that the Committee will accept at the least that a great many instruments will be technical and minor, and will merely ensure flexibility, swiftness in dealing with identified defects and, of course, continuity of our legal framework.

A specific legal requirement to consult could also impact on our negotiations with the EU. It could inadvertently expose our position at an inappropriate moment if we were engaged in sensitive discussions about particular issues. Compulsory consultations would also impact on the tight timeline for Parliament to scrutinise instruments. The consultation process requires resources and time from government and stakeholders, and we want to focus the energies of those inside and outside government on the most important measures rather than have them occluded by the sheer volume of consultations on what might, at the end of the day, be very minor technical matters. That is the challenge that could arise under these amendments. I hope that the noble Baroness understands why the Government cannot accept her amendment, and I urge her not to press it.

--- Later in debate ---

[Baroness Hamwee]

Before the noble Baroness moves on to the other amendments, is she able to expand a little on the point about upsetting negotiations? We are talking about moving existing legislation over the break point into the future. I am quite puzzled by that part of her response.

[Baroness Goldie]

That may be part of what is involved but the other part might, as emerged in earlier discussions today, impact on subsequent matters that are germane to the negotiations and will therefore have to be taken into account in whatever legislative framework is proposed. It is not just a simple question of the bridge; there may be other aspects to be considered.

--- Later in debate ---

[Baroness Hamwee]

My Lords, on the code of practice that is the subject of the amendment of the noble Lord, Lord Adonis, my experience from the Secondary Legislation Scrutiny Committee is that it is honoured in the breach as well as in the observance.

[Baroness Goldie]

There was a universal welcome for the Government adopting as their principles much of what was proposed by the Secondary Legislation Scrutiny Committee. The committee has a locus if it considers that consultation has been inadequate.

I turn to the amendments tabled by my noble friend Lady Neville-Rolfe, starting with Amendment 249. She has an exceptional, perhaps encyclopaedic, understanding of the statutory instrument processes and is clearly aware of the historical issues that led to concerns regarding the quality of documents laid as part of this procedure. While I understand the concern that underpins her request to place in statute the responsibility to provide sample statutory instruments before both Houses, the Government do not believe that such a responsibility is proportionate. Wherever possible, and where negotiations will not be affected, we would hope to provide details of draft SIs from all sectors.

The noble Baroness’s proposed new paragraph in Amendment 250 seeks to address the procedures for conducting consultations. She makes a number of sensible suggestions as to what should be considered and included when conducting consultations—in fact, many of these are already being conducted or are currently being incorporated—but to require that a draft instrument should be published not less than 60 days before it is laid would place an undeliverable duty on departments, given the limited timeframe that is available and the need at times not to reveal expectations as to the outcome of negotiations while they are ongoing.

Similarly, Amendment 251 would place an impossible burden on the House and its time and does not allow for flexibility in the management of business. The new proposals for laying draft negative SIs with a sifting committee would mean that the Minister would not be able to give any indication as to when it was expected that the instrument would be debated. In these cases, if, as I hope, the Committee accepts the recommendation of the Government that the negative procedure is proportionate, the SI would proceed as a negative statutory instrument. This House has a well-established process for considering affirmative and, where desired, negative SIs, and we want to see this continue.

None of this is to refute that my noble friend has set out some very good suggestions for practice, but practice should not be placed in the Bill. Indeed, the noble Baroness, Lady Smith, had an interesting suggestion about listing SIs once known.