European Union (Withdrawal) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

We have already debated the appropriateness—or the inappropriateness, I should say—of taxation by statutory instrument and the question of when cost recovery becomes a tax. I have to say that I did not find the Government’s arguments in that case particularly convincing, especially as this is a regime that could lead to public authorities charging pretty well what they want to charge for their services. The lesser control—the negative procedure—for an increase in a fee or charge is part of that regime, and I find it similarly concerning. So I hope that the Government will come forward on Report with amendments to make such increases subject to the affirmative procedure.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we support that. It is particularly important for the new SIs that will deal with functions hitherto carried out by EU bodies and which therefore will not be part of the normal, ongoing scrutiny that may have happened for many years. It is particularly important that these should be by only the affirmative procedure, as the word “modification” can only mean an increase.

[Viscount Hailsham (Con)]

In order to indicate cross-party support, I will say that I support this amendment.

--- Later in debate ---

[Baroness Goldie]

My Lords, we have spent, if not many happy hours, then certainly a significant period of time constructively discussing the powers in the Bill. The Government have never denied that they are broad, and they welcome the improvements to sensitive legislation such as this which such detailed scrutiny brings. I hope that noble Lords feel that this has been time well spent.

Although we have touched on this area before, we now come to look fully at the provisions in the Bill relating to the scrutiny of these powers by Parliament. I am well aware that by the end of these groups, many noble Lords will remain sceptical, so I would like to place on the record that the Government welcome scrutiny. It acts as a powerful constraint on Ministers and quite simply improves the quality of legislation.

Many Members of the Committee have already mentioned the excellent work done by the committees in this House in scrutinising secondary legislation. If we can perhaps offer ourselves the smallest of commendations, I believe the calibre of scrutiny of secondary legislation in this place is of the highest order and the processes very robust.

As we said in our White Paper, ensuring the right level of parliamentary scrutiny for all the instruments which are to come under the Bill is essential. This will be a major logistical challenge for Parliament and the Government, and I think all noble Lords understand that.

The provisions in Schedule 7 sit alongside reforms in government where the Parliamentary Business and Legislation Committee, chaired by the Leader of the other place, now oversees secondary legislation. It is the first time that a Government have done this. This Government are trying to improve the service that Parliament gets for secondary legislation. Individual Ministers are responsible for SIs—responsible for the quality that this House expects and for ensuring that they are produced in a sufficiently timely fashion that the flow can be managed. It is a matter of fact that we shall have a limited number of days between Royal Assent of the Bill and exit day, and we must use each day well and effectively.

To ensure that the daily consideration of SIs is effective, we have provided for a range of specialised statements to provide the information that Members of the other place and of this House have raised in debate as being important to the effective scrutiny of the secondary legislation to come. The Government have also taken the points made in the debate so far to heart, and I can say to noble Lords that we are viewing them with an eye on the solutions agreed on the sanctions Bill. However, the logistical challenges will remain. The only way to address that aspect will be to approach the scrutiny of legislation with openness from the Government and, I might suggest, proportionality on all sides.

It is simply not true that negative SIs receive no scrutiny. There is a hierarchy of legislation in this country where content matches scrutiny. Delegated legislation is not amendable for a reason; negative SIs receive less scrutiny than affirmative instruments, which in turn receive less than primary legislation. I do not dispute that, but I suggest that what they receive is appropriate to their form and content. If we accept that all these are valid procedures, we must appropriately match each provision to a proportionate procedure. With regard to primary legislation, we have always said we will not be making substantial policy changes through the powers in the Bill and would introduce other legislation. The fruits of that have already been seen in the form of the sanctions, trade and customs Bills, among others.

I am sympathetic to the noble Lord, Lord Adonis, and his Amendments 230, 234 and 235, alongside all others who wish to prescribe that SIs being made under the Bill that make corrections or other amendments in sensitive areas of our law should be subject to the affirmative procedure. However, I do not believe that is proportionate in every case. Using the affirmative procedure for all SIs risks giving a level of scrutiny to some SIs that is disproportionate to the content, and I fear we would risk being unable to see the wood that is effective scrutiny for the trees of principle.

The noble Lord, Lord Adonis, has suggested that adjustments to several important areas should always be subject to the affirmative procedure. Neither the decision to leave the EU nor this Bill changes our commitments to ensuring, for example, that workers’ rights and the rights of disabled people are protected and keep pace with the changing world. The human rights of people with disabilities will continue to be protected through our commitment to the United Nations Convention on the Rights of Persons with Disabilities, which is binding in international law. Additional protection is provided by its optional protocol, which the UK has also ratified.

I recognise while saying this—and I beg your Lordships’ forgiveness here—that I am not personally an expert on legislation relating to the rights of people with disabilities or of workers, but I am fully aware of the importance of these areas and I reassure noble Lords that the Government are fully committed to protecting the rights of people with disabilities and the rights of workers. I am also, and again this will not surprise your Lordships, not an expert on the detail of a range of other important areas including financial services, medical regulation or cross-border divorce proceedings. These are all important areas of our statute book but nevertheless are all areas that are likely to also contain a variety of minor and technical adjustments, including changes such as modifying references to EU law to read ‘“retained EU law” or “other Member States” to read “Member States”. I hope we have demonstrated this to the House in the draft SIs that we have already published.

The Government remain of the view that it would not be proportionate for these changes to be made by affirmative instrument, even where we are making these changes in law of a sensitive nature, such as the rights of workers and of people with disabilities. Decisions on the scrutiny procedure attached to statutory instruments should, the Government feel, be based on the type of correction rather than by policy area.

I encourage your Lordships to view the draft statutory instruments that we have already published. I have looked at them myself, and I think they illustrate, for example, how the amendments will ensure that the legal framework that provides for employment rights continues to be operated effectively after exiting the EU.

I trust the expertise of many of your Lordships, especially those who have already served with distinction on the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments, to draw the House’s attention to SIs. I submit that this, in conjunction with the new sifting process which, as we committed to on Second Reading, we intend to extend to the Lords, will make efficient and proportionate use of this House’s expertise and ensure proportionate scrutiny.

I turn to Amendment 240 in the names of the noble Lords, Lord Lisvane, Lord Tyler and Lord Pannick, and the noble and learned Lord, Lord Judge. The Government deliberately provided that the powers in Schedule 4, which we will debate on another day, should indeed be subject to the affirmative procedure where Ministers are creating new fees and charges. Fees and charges of the type that will be established here or where established under Section 2(2) of the European Communities Act and Section 56 of the Finance Act 1973 require regular adjustment. These adjustments are not in their nature inherently the type that should be subject to the affirmative procedure. Nevertheless, I understand that noble Lords are concerned by the possibilities here and by the fact that there have been a number of controversial instruments in recent years.

I have certainly paid close attention to the contributions to this debate, and I reassure your Lordships that we will reflect on this issue ahead of Report. Nevertheless, I repeat that it cannot always be proportionate to have all adjustments to fees made by affirmative procedure. For example, when technology allows Ministers to cut costs—although I recognise that reductions in fees feel like a rare event—or in the very common case of simply accounting for the effect of inflation, a simpler procedure may be appropriate.

Finally, I return to the noble Lord, Lord Adonis, and his Amendment 236—

[Baroness Hayter of Kentish Town]

My Lords, before the noble Baroness leaves the issue of fees, it was fairly clear earlier that the House probably would not accept that fees could be charged without primary legislation: we do not accept that the power to do that should be by secondary legislation. Assuming that we win on that, which I think we might, when we come to Report, I think it unlikely that the House will want to accept the idea that those fees could then be hiked by a Minister without coming through the affirmative procedure. Given that the Minister said that she would look at this in the broader context that this is a new power to set up fees for new functions being brought over, raising them without an affirmative procedure is perhaps a step too far.

[Lord Tyler (LD)]

Further to that point, am I not right in thinking that the reference back under the amendment to Part 1 of Schedule 4 means that we are talking about public authorities, not just Ministers? Will the Minister comment on the number of organisations that may fall into this category? I recall a previous discussion where it was clear that literally hundreds of organisations might be making such modifications to taxes or charges. So this is not, in her words, a small, technical matter; it could apply to a large number of organisations which could impose considerable increases in taxes and charges.