European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

3: Clause 21, page 25, line 5, leave out “(including modifying this Act)”
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, I beg to move Amendment 3 on behalf of myself and the noble Lord, Lord Tyler. I shall also speak to Amendments 4, 5 and 7. These amendments are all tabled for the same reason: because the Government seem to like deciding things for themselves, with no reference to Parliament. That is possibly why they want to shove us up to York, where our voice will not be heard as loudly as it is in Westminster—although they have missed a trick by not trying to send us to Coventry.

Amendment 5 is needed because when the Government signed the withdrawal agreement allowing the EU-UK joint committee to amend the agreement itself, they failed to allow for scrutiny of the joint committee. The Government have this power under the Bill which is, in the words of our EU committee, a power immune from

“clear scrutiny procedures or parliamentary oversight”.

Clause 21 contains significant new powers to amend by statutory instrument the 2018 withdrawal Act, in what our DPRRC describes as

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act”.

It is not just unusual for the Government to have that power with only the most cursory of scrutiny to amend primary legislation; it is also unexplained.

Implementing the Northern Ireland protocol may well prove challenging, of course, but we have seen nothing to suggest that this would demand changes to the 2018 Act. Nor does the letter of 16 January from the Minister, the noble Lord, Lord Duncan, provide comfort when it states that the power could not be used to repeal the devolution settlement but be exercised only for the purposes of implementing the protocol and the Government’s policy on unfettered access. If that is the case, why is the power there to repeal? While the Minister says that the power would not be used to repeal any power in the 2018 Act, there is still no reason given as to why it is there, nor why Amendment 3 cannot be accepted, given that it would simply take out from the Bill the ability to amend the 2018 Act by statutory instrument, which the Minister says the Government will do not do anyway.

Amendment 4, in the name also of the noble Lord, Lord Beith, is needed because, as the DPRR Committee states, the Bill contains

“a … potent form of Henry VIII clause … creating a new legal regime that would otherwise require”,

an Act of Parliament. Furthermore, these Clause 21 powers have none of the restrictions which are found in respect of similar powers elsewhere in this Bill or in the 2018 Act. Amendment 4 would insert the same limitation on the Clause 21 regulation-making powers as exists elsewhere in this Bill and the other Act. After all, it would be pretty exceptional for Ministers to be able to create new criminal offences, including with two-year terms of imprisonment attached, to set up public bodies—just referred to by my noble friend Lord Hutton—or to levy taxes, yet the Government want the power the do that. The assurance in the letter of 16 January from the noble Lord, Lord Duncan, that this would be by affirmative procedure is of no comfort to this House, given that such a procedure is effectively never used to stop a Minister doing exactly what he or she wants.

Amendments 5 and 7 are in the name of the noble and learned Lord, Lord Thomas of Cwmgiedd, who rightly said at Second Reading that it would be a terrible precedent if we altered the devolution legislation other than by primary legislation. The amendments would simply prevent Ministers using Clause 21 and 22 powers to amend the statutes which embed the devolution settlements. As we know, there is a perfectly viable, acceptable way of amending the Welsh statutes without primary legislation where the National Assembly agrees with the change; that is, through Section 109 Order in Council. We have been given no reason why the Government have written themselves these powers, which I fear can mean only that they want to change the devolution settlements without the consent of the National Assembly and Welsh Government.

Given that, even now, the Government seem determined to push this Bill through without legislative consent from the Welsh Assembly, these powers are understandably fuelling suspicion. I therefore trust that the Minister will accept Amendments 5 and 7 and, by doing so, rule out any chance of the Government trying to amend the Government of Wales Act without the consent of the National Assembly.

The Minister knows full well that the Assembly is due to debate its legislative consent Motion tomorrow. It would be shame—in fact, it would be more than a shame; it would be a constitutional landmark and a bad one—if this consent Motion were to be withheld due to the powers in this Bill, which appear to threaten the Government of Wales Act. Amendments 5 and 7 are therefore of some consequence.

We have been given no satisfactory explanation for why Parliament should give Ministers powers to amend by order the withdrawal agreement, the 2018 Act or the devolution statutes. Frankly, unless and until we have such an explanation, this power must come out of the Bill. I beg to move.

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[Lord Duncan of Springbank]

The noble Baroness is right to draw this to our attention. It is not the Government’s plan in any way to seek to surprise any of the devolved Administrations on these matters. It will be necessary, as matters arise from the negotiation’s focus on the Northern Ireland protocol that have an impact on Wales or Scotland, to ensure full dialogue with the Welsh, the Scots and the wider Northern Ireland community to ensure that they are fully aware of why these matters are necessary.

The structure that we have traditionally used is the Joint Ministerial Committee. As I said a few moments ago, our purpose is to ensure that the technical discussions are dealt with primarily at the level of technicians, to enable us to find the correct way to ensure we are in full conformity with our international obligations in good time within calendar year 2020. On that part, the Government will fully commit early and engage often on these matters to ensure there is neither a surprise nor a disappointment in these matters. Again, I stress that these are elements that will be required to deliver the Northern Ireland protocol itself. It will not be in any way an endeavour to try to reach beyond, into the current statutes within the Wales Act or the Scotland Act. That is not their purpose, and indeed they cannot do that.

[Baroness Hayter of Kentish Town]

I thank the Minister, but he is struggling. I have three points to make.

First, this is political. The Minister knows jolly well that he should be making these amendments, and No. 10 is telling him that he cannot. He must have heard from across the House that there are serious concerns about two elements. One is regulation-making powers, and the other is this very important one concerning Wales in particular, as we have heard from the Welsh accents today. A Government who had not been told by No. 10 to make no changes would have made some changes, and I regret that the Minister finds himself in that position. His answers are, frankly, inadequate. He says that this is all going to happen in 2020, but if I am right—and I look to be reassured that I am—there is no sunset clause on these powers, so we are not just talking about this year. We are talking about powers going well into the future.

As the Minister has heard, there is deep concern in your Lordships’ House about the Henry VIII powers and the ability to amend an Act and bring matters such as criminal offences or setting up public bodies which otherwise could be done only by an Act of Parliament. We have heard concern from the noble Lords, Lord Tyler and Lord Howarth, and the noble and learned Baroness, Lady Butler-Sloss, who used the word “unacceptable.” She said that there are no curbs on these powers. The noble and learned Lord, Lord Judge, took us back to Magna Carta—before my time—and the importance of things such as taxation not being done by ministerial fiat; and that is what we are being asked to give here. That is one side of it. As the noble Lord, Lord Beith, said, keeping that boundary between what Parliament can do and what a Minister can do is key.

The second aspect is Wales. Maybe it is because the Minister is Minister for Northern Ireland and Scotland but not for Wales—or, he is indicating, for only a little bit of Wales—that he does not understand. He has the father of Welsh devolution here, the noble and learned Lord, Lord Morris. It is worth hearing about how it was implemented and about the trust, or lack of trust, at the moment. Here we are, a day before the Government ask Wales to give its legislative consent to this Bill, being told that the Government want to do things without the consent of Wales because of some spurious things that Section 109 does not go far enough on— although we have not heard examples—or because the international direction is not covered, even though the protocol is an international obligation. The most regrettable thing is that the Minister is saying, “Take me out: do this by a vote,” because he will not bring back an amendment at Third Reading. That is the sign of a closed mind. I regret that.

I am not, sadly, going to test the opinion of the House, but I leave the Minister with the words of warning from, I think, the noble and learned Lord, Lord Judge: test us on this, and we will vote down those affirmatives. That would be much more serious in the long term for the way government works, and I really do not advise that. But for the moment, I beg leave, with great sadness, to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Baroness Hayter of Kentish Town]

15: Clause 30, insert the following new Clause—
“Parliamentary oversight of progress in negotiations on the future relationship
After section 13B of the European Union (Withdrawal) Act 2018 (certain dispute procedures under withdrawal agreement) (for which see section 30 above) insert—“13C Parliamentary oversight of progress in negotiations on the future relationship (1) A Minister of the Crown must, within the period of 30 days beginning with the day on which this Act is passed, make a statement setting out Her Majesty’s Government’s objectives for the future relationship negotiations with the EU.(2) A Minister of the Crown must, before 15 June 2020 and every two months thereafter until IP completion day, make a statement setting out the status of Her Majesty’s Government’s future relationship negotiations with the EU.(3) A statement under subsection (2) must include—(a) a report of the negotiations carried out to date or since the last statement, and(b) a declaration of whether, in the Minister’s opinion, agreements on trade and security which are consistent with the contents of Parts II and III of the Political Declaration setting out the framework for the future relationship between the EU and the United Kingdom can be concluded and ratified before IP completion day. (4) The requirement to make statements under subsection (2) lapses if—(a) agreements on trade and security are concluded and ratified before IP completion day, or(b) a Minister of the Crown makes a statement to the effect that the United Kingdom will not conclude or ratify agreements on trade and security before IP completion day.(5) A statement under subsection (4)(b) must contain details of Her Majesty’s Government’s proposals for mitigating the absence of trade and security agreements with the EU.””Member’s explanatory statement
This amendment requires a Minister to make an initial statement setting out the Government’s objectives for the future relationship negotiations and then provide regular updates on the progress being made. If no future relationship can be negotiated before the end of the implementation period, the amendment would require a further statement to outline proposed mitigations.

[Baroness Hayter of Kentish Town]

My Lords, this is perhaps one of the most significant amendments before your Lordships’ House. It deals with a major constitutional issue—the accountability of the Executive to Parliament —and with matters of prime concern to our country’s future: that is, the trading, security, diplomatic and cultural links that we build with our close allies and close neighbours across the continent.

The trade talks in particular will have major implications for the regions and nations of our country, and for different sectors of our economy. Despite this, the Government seem to want to listen to no one. Business has been pleading with Ministers to involve the relevant businesses in the trade talks, with alarmed reactions over the weekend, as we have all seen, to the Chancellor’s statement that there will be no alignment on EU regulations going forward, diminishing any chance of frictionless trade.

We have heard from the food and drink industry about its fears, both for particular parts of the industry but also with wider implications of likely food price increases. Indeed, it even talks of the death knell of the concept of frictionless trade with the EU. Agriculture, the motor industry and manufacturing are all worried about jobs, investment and their competitiveness in their vital EU markets. Despite that, they feel excluded from the Government’s thinking. As the CBI says, businesses need to be brought into trade talks with both the EU and the US, and it calls on government to work with business

“closely, comprehensively and transparently throughout every stage of negotiations, from mandate setting through to implementation.”

It is right—as are consumers and farmers, whose futures are at stake.

Shutting Parliament out of the discussions on the objectives of, as well as the progress on, negotiating talks, means that it is almost impossible for MPs to represent and answer external concerns that are brought to them on a daily basis. It seems clear that that is exactly what Ministers want to shut out: any voices that conflict with their ideology or which bring them practical problems about the implementation of new rules and checks, and tariffs or indeed non-tariff barriers. No wonder that some think that this is about allowing for a final no-deal relationship at the end of December: a free-for-all, WTO basis for our trading, with immense risks to part of our industry and regions.

In the election, the future of UK plc was voted into the hands of the Government. However, in our system of democracy, that does not mean that the Government should not be accountable to Parliament and should not get its plans approved by Parliament, as all their other plans are, via debate, a vote on the Queen’s Speech, and votes on their Bills, which are enacted only with the agreement of Parliament. Here we are talking about something else: the preparations for a treaty which will affect our living, working, trading, policing, security and environmental relationship with those close friends and near neighbours—decisions which will, one way or another, affect every citizen now and in the future.

So it is perfectly normal to say that, just because the treaty will not be a Bill, that is no reason not to have the equivalent of Second Reading and Committee before we arrive at the final Third Reading equivalent—that is, the final treaty, which will come to Parliament for approval only at the end via the CRaG. At that ratification stage, it is basically too late to say, “Well, actually no, not really—this bit doesn’t work”, “This affects our industry” or “That affects a particular region”. It will be too late then to make changes to the treaty.

So, without this amendment, which gives Parliament a say, Parliament will be shut out of these crucial talks, other than through the odd take-note debate or response to a Statement. That is not enough for your Lordships’ House, and it is certainly not enough for the elected House of Commons. We must ensure that the Commons has some real input throughout the process and, crucially—something that is allowed for in the amendment —if a December deal looks unlikely, the Commons must have some ability to make the Government explain their plans for that eventuality. That is what Amendment 15 would provide. I beg to move.

[Lord Hannay of Chiswick (CB)]

My Lords, I support the amendment moved by the noble Baroness, Lady Hayter. I point out that the amendment on the Order Paper on Report is a considerably reduced text from the one that was discussed in Committee. That is to say, those of us who have put our name to it have listened to some of the Government’s objections—in particular, to their wish to avoid any appearance of a formal mandate—and we have gone for a much lighter procedure, which is now on the Order Paper. So attention has been paid to what was said from the government side.

However, the case for this amendment has been hugely strengthened since Committee last week by the interview that was given by the Chancellor of the Exchequer to the Financial Times last Thursday. In that interview, he made policy that had not hitherto been set out, without, as far as one can see, the agreement of Cabinet, certainly of the House of Commons, or of this House, or even knowledge of what he was about to say. So the case for setting down some process by which the Government need to come to both Houses and explain what they are doing at various stages in what will be an extremely complex negotiation has been greatly strengthened by that action by the Chancellor of the Exchequer.

The position he took on the question of no regulatory alignment is akin to the decisions that were taken by the previous Prime Minister when she went to the party conference in the autumn of 2016 and, in one breath, ruled out the single market, the customs union or any jurisdiction of the European Court of Justice. That did not end terribly well, and I rather doubt whether what the Chancellor of the Exchequer now said will end terribly well either. What he said sounded—and is, if you read the wording—extraordinarily categorical. He did not say that there will not be alignment on all matters—that we will not, as it were, remain in total alignment with European regulations—but that we will not be in alignment on anything.

He is effectively ruling out the possibility for example of the motor industry being put on a system of alignment. That would not be a ridiculous thing to happen, since it has been working to the same standards with its continental counterparts for something like 25 years. However, he has ruled all of that out, so the case for requiring that from now on the Government should at least tell and consult both Houses about what they are planning to do and how they are getting on seems to have been greatly strengthened in the interim by the Chancellor of the Exchequer.

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[Lord Callanan]

My Lords, Amendment 15 would introduce a new clause that would require the Government to publish their negotiation objectives and provide regular reports on the progress of negotiations. As a number of noble Lords observed, this is a different amendment from that which your Lordships considered in Committee, as it no longer contains any formal role for Parliament in approving objectives before negotiations begin. I personally am pleased that the Opposition have accepted that the negotiation of international trade agreements is rightly a function of the Executive. However, this amendment still seeks to impose statutory reporting requirements which, in our view, are simply unnecessary.

The noble Baroness set out what those requirements are, but for the benefit of the House, the amendment would require publication of the negotiation objectives and two-monthly reports on the progress of negotiations, beginning no later than 15 June. The interest in the objectives is somewhat surprising, as the Government’s vision for the future relationship with the EU is already set out in detail in the political declaration; and this is the answer to the point made by the noble Lord, Lord Liddle, in his intervention on my noble friend Lord Barwell. The House has already had ample time to consider this document. It was laid before each House on 19 October last year, and many committees of your Lordships’ House have already opined on it.

As to the two-monthly reporting requirements, beginning no later than 15 June, this could mean a maximum of four reports before 31 December this year. I remind the House that the Prime Minister has already committed that

“Parliament will be kept fully informed of the progress of these negotiations.”—[Official Report, Commons, 20/12/19; col. 150.]

I agree with the point made by the noble Lord, Lord Howarth, that the setting out of reporting requirements in statute, as proposed by this amendment, would be a mistake. The Government will of course, as always, support Parliament in fulfilling its important role in scrutinising the actions of the UK Government in the negotiations, in line with the PM’s commitment. As my noble friend Lord Bridges pointed out, both Houses will have all the usual tools of scrutiny at their disposal.

I listened with interest to the numbers quoted by my noble friend Lord Bridges; he somewhat pre-empted me. I hope he will forgive me, but my numbers are slightly different from his. I pointed out in Committee that Ministers have spent over 760 hours to date addressing these issues in the House. I personally have spent over 230 hours—sometimes it feels a little longer—answering questions and responding to debates in your Lordships’ House. Officials tell me that I am one overnight sitting away from clocking 250 hours by 31 January, which I hope will make me eligible for a medal. Over its lifetime, DExEU has made over 100 individual Written Statements to each House and responded to 23 Select Committee reports, two of them just yesterday. By my calculation, that is an average of one publication every 10 days, not one every two months, and all without any statutory reporting requirements. That, of course, is without counting the various position papers and other publications also made by the department.

I have no doubt that the situation would be the same in the House of Commons. The Speaker heard very clearly the Prime Minister’s commitment to provide information. He has the powers at his disposal to ensure that Parliament can hold the Government to their commitments. Select Committees will continue to question Ministers. They also have the right to request papers. Opposition day debates and the Backbench Business Committee will continue to provide many opportunities for both Houses to consider all these issues.

I remind the House, as I did in Committee, of the risks in creating fixed points to report before knowing anything of the negotiating schedule. At worst, this could mean that Ministers would be required to provide public commentary at a critical point where confidentiality is paramount, thus potentially undermining the UK’s negotiating position. Alternatively, the reporting deadline might fall when there is nothing to say, since progress would already have been reported by other means, in line with the Prime Minister’s commitment. I pointed out in Committee that I saw this just two weeks ago, where a reporting date set in advance by the Benn Act resulted in a grand attendance of three Members—me and the noble Baronesses, Lady Hayter and Lady Ludford —speaking in that particular debate, which we had to hold by virtue of the Benn Act that you were all so enthusiastic to pass.

These reports are at the mercy of events and they can very often end up being completely worthless, failing to assist Parliament in holding the Government to account. The long-standing mechanisms of both Houses to hold the Government to account will work well because they are flexible and can respond to events, unlike statutorily set out reporting requirements. This House is rightly keen to ensure that it will be kept up-to-date on negotiations, but legislating for it in this way is a very blunt and inflexible approach. During our exit negotiations, Parliament has demonstrated clearly that, where a majority feels that it is receiving unsatisfactory information or is concerned by the direction of travel, it has the tools and the will to secure this information. Nothing has changed on that front as we look to the future negotiations. This Parliament already has a lot of power and this amendment adds nothing to it. I therefore hope that the noble Baroness will feel able to withdraw it.

[Baroness Hayter of Kentish Town]

I am quite surprised by the Minister’s response. I thought he really enjoyed discussions with just the noble Baroness, Lady Ludford, and me late at night, that his 230 hours here were just the foothills and he was looking forward to more.

We have had an interesting discussion, including my noble friends Lord Howarth and Lord Liddle, and the noble Lords, Lord Wallace, Lord Bowness and Lord Barwell. I apologise, I did not mean to include the noble Lord, Lord Barwell, in that, because the interesting thing is that in addition to those noble Lords we have our experienced negotiators. The noble Lord, Lord Hannay, has probably put more than 230 hours into negotiating. The noble Lord, Lord Bridges, before he took off—he is back three rows from where he was—negotiated on this, and obviously the noble Lord, Lord Barwell, did too. The lessons that they have pulled from this are different. Of course, two of them were part of the Executive, so it is no wonder that they do not want this extra parliamentary scrutiny.

European Union (Withdrawal Agreement) Bill

Baroness Hayter of Kentish Town Excerpts

Committee: 1st sitting (Hansard continued) & Committee stage & Committee: 1st sitting (Hansard continued): House of Lords
Tuesday 14th January 2020 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

12: Clause 21, page 25, line 5, leave out “(including modifying this Act)”
Member’s explanatory statement
This amendment would remove the ability to amend the European Union (Withdrawal) Act 2018 itself by statutory instrument in connection with the Ireland/Northern Ireland Protocol.

[Baroness Hayter of Kentish Town (Lab)]

I think we have got here earlier than some other noble Lords anticipated, which is why I may be speaking a bit slowly. They still have not arrived, so I give in—no, it is all right. Help is arriving at this moment. Amendment 12 stands in my name as well as those of the noble Lord, Lord Tyler, and the noble Viscount, Lord Hailsham. I shall also speak to Amendment 15, which is also in my name and those of the noble Lord, Lord Beith, the noble Viscount, Lord Hailsham, and the noble and learned Lord, Lord Thomas of Cwmgiedd.

Clause 21 is, as one of our committees describes it, a major clause adding significant new provision for Ministers to make regulations to implement the withdrawal agreement’s Irish/Northern Irish protocol, including

“any provision that could be made by an Act of Parliament,”

including modifying the 2018 Act. Unsurprisingly, our Delegated Powers and Regulatory Reform Committee, in its report of 9 January, therefore describes this provision as,

“a most potent form of Henry VIII clause, allowing regulations to modify their parent Act in addition to creating a new legal regime that would otherwise require,”

an Act of Parliament. Amendment 12 would remove the ability in the current Bill to amend the 2018 EU withdrawal Act by statutory instrument in connection with the protocol. Amendment 15 would place a series of limitations on the regulation-making powers allowed for in this clause.

First, Amendment 12 would, as I say, remove the ability to amend the 2018 Act. It is both unusual and unexplained as to why the Government want to give themselves a power, with only the most cursory scrutiny, to amend primary legislation. I know certain newspapers took umbrage this morning at my warnings to the Government yesterday against ramming through legislation even if it contains deficiencies, and of them being unwilling to listen to reason. But here we appear to have a provision almost certainly written as a failsafe; I think the Government know that they will almost certainly have got things wrong. This is not a way to make good law. We do not like it and it should come out.

Amendment 15 is needed as, for unexplained reasons, there are no restrictions on the scope of the Henry VIII powers in respect of implementing the Northern Ireland protocol. That is in contrast to all the other Henry VIII powers in the 2018 Act and elsewhere in this very Bill—for example, in Clause 18. Amendment 15 would add the same restrictions as are in the 2018 Act, and indeed elsewhere in the Bill, on making relevant new criminal offences, setting up public bodies or imposing fees and taxation by secondary legislation. Given what is elsewhere in the Bill and in the earlier Act, I hope that the Government will accept these changes.

Crucially, Amendment 15 would also ensure that neither the Human Rights Act nor the devolution Acts could be amended or repealed by secondary legislation. It is probably the view of the whole House that changes to fundamental rights should be made only by Parliament through primary legislation, not by Ministers through secondary legislation. As the noble and learned Lord, Lord Thomas of Cwmgiedd, whom I am glad to see in his place, said yesterday, it would be,

“ a terrible precedent … if we altered the devolution legislation other than by primary legislation”.—[Official Report, 13/1/20; col. 532.]

Unsurprisingly, the Welsh Government particularly support proposed new paragraph (f) in Amendment 15, with its restriction to prevent UK Ministers using such powers as are allowed in this clause to amend the statutes that embed the devolution settlements. There is already a perfectly viable way of amending the Welsh statutes without primary legislation, where the National Assembly itself agrees to the change: through a Section 109 Order in Council.

Why have the Government written themselves these powers in Clause 21? Should the Government refuse to accept Amendment 15, particularly its proposed new paragraph (f), they will by that refusal feed the suspicion that they want this power to make changes to devolution settlements even where the National Assembly and the Welsh Government are opposed to such changes. I therefore trust that the Minister will accept this amendment and, today, rule out any chance of the Government using these powers to amend the Government of Wales Act without the consent of the National Assembly. I beg to move.

[Lord Tyler (LD)]

My Lords, I wish to speak to Amendment 12, to which my name is attached. This is quite different from most of the other amendments which have come before the Committee. It is in no sense political; it is a matter of process, not politics. Its significance lies only in the clause’s defiance of our normal parliamentary processes and the danger of establishing a very unfortunate precedent. There are two consequences: first, this modest improvement cannot be characterised as holding the Bill up; and, secondly, it cannot be said to be a wrecking amendment because it is nothing of the sort.

I am disappointed that the noble Lord, Lord Cormack, is no longer in his place—he was there just a few moments ago—because I listened carefully to his speech yesterday and I was struck by a point he made which then seemed to be followed by a number of noble Lords, albeit a small minority. I refer to the point he made about the Salisbury-Addison convention, which was agreed between the leader of a small group of Labour Government Peers and a large group of hereditary Conservative Opposition Peers after the 1945 election. The name is significant because it was a deal made between two individuals appropriate to those precise circumstances. It has limited relevance now, as was so comprehensively analysed by the 2006 Joint Committee on Conventions, on which I served.

That committee reiterated:

“In the House of Lords: A manifesto Bill is accorded a Second Reading; A manifesto Bill is not subject to ‘wrecking amendments’ which change the Government’s manifesto intention as proposed in the bill; and A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.”


In passing, I note that the noble Lord, Lord Strathclyde, the then Leader of the Opposition, was on record as stating that the doctrine needed to be re-examined:

“Election promises can be vague and easily manipulated by governments, who reserve the right to jettison manifesto promises if things change. If governments can have the right, why cannot Parliaments too have a say on circumstances as they change?”—[Official Report, 24/1/01; col. 294.]


Similarly, the Joint Committee took a great deal of evidence on the issue of secondary legislation. It was told by all parties that the Salisbury-Addison agreement did not apply. In relation to this clause and this protocol, we therefore have to conclude that Salisbury-Addison is totally irrelevant.

This is not a wrecking amendment. The provision was not spelt out in the manifesto, and in any case secondary legislation was specifically excluded from the convention—and that was just a bilateral agreement excluding other parties and the Cross-Benchers and was overtaken by events precisely as Lord Strathclyde pointed out.

I emphasise these points for two reasons. First, yesterday a few noble Lords seemed to be dangerously near to suggesting that your Lordships’ House should forgo its proper constitutional role in scrutinising this Bill, not least in relation to its significance in terms of the relationship between the Executive and Parliament. Indeed, one or two noble Lords seemed to be on the verge of bullying us with threats of reform to this House. As a very long-term advocate of reform, I say, “Bring it on”. The 2012 reform Bill, with which I was much involved, received a massive majority of 338 in the Commons with all parties giving it majority support—so it is over to you, Mr Cummings. Indeed, I would repeat Mr Clint Eastwood’s remark: “Go ahead, punk, make my day.”

Secondly, we must distinguish between on the one hand this amendment and the few others which seek to instil proper parliamentary process, avoiding precedents which future Governments could exploit, with more substantial political changes to the Bill on the other.

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[Lord Duncan of Springbank]

To be clear, the information I have from my officials is that this will be done by the affirmative procedure. It is important to stress that point. Further, returning to the protocol, which has not been fully discussed in this particular debate, the question is: what do the two amendments seek to do? While we have no intention of in any way seeking to unravel the Wales Act or the Scotland Act, there will necessarily be elements in the Northern Ireland Act which will have to be explored and addressed, with full consultation—I express that clearly—with the restored Executive and Assembly. They will have this element for the first time: it was not there before. For example, the issue of democratic consent to the wider Northern Ireland protocol would represent a necessary adjustment to the Northern Ireland Act. This could only be taken forward by full dialogue and discussion with the restored Executive to ensure that the four and eight-year cycle that needs to go forward is inside the heart of this approach. There are also going to be elements, which we have anticipated, of disapplication of certain elements of retained EU law as they affect Northern Ireland. They too, in a domesticated form, would need to be adjusted using these powers.

We fear that there may be a hindrance of our ability to adopt the decisions of the Joint Committee, bearing in mind that that committee was established between the UK and EU. We will need to be able to move that forward in real time and this too will require a power similar to that which we have set out. Another thing we must be on top of is that we have, in this scenario, a potential restriction which might impact on the very issue which I thought might be more expansively explored—the unfettered access part—for reasons which will be touched on in the debate to follow. This debate has taken a turn that I had not anticipated—the notion that a power is now being granted to the Government to undo that which has been set before: if you like, the magisterium of the law which sets up the elements of Northern Ireland, Scotland and Wales. That is not the purpose of this rule. Rather it is to allow the Government, where necessary and through full consultation with the powers of Northern Ireland, to deliver the elements that will emerge in the ongoing negotiations and in any other concomitant parts, to ensure that we are ready to deliver the required elements by one year from today. If we fail to do that, we run the risk of undermining our international obligations. That would then create the problem that this is designed to try and avoid.

It would be very easy for me to say: “You have just got to trust me”. That is not what I am trying to say, and it would be foolish as noble Lords should not try to trust me. The important thing is to test me, and to test the Government. That is why, as well as putting these points to the House now, and setting out the areas in which we do need these necessary powers, I am happy to put that in to a note which I will supply and make available to all noble Lords who are interested in this, so they can see where we believe this power will be required to deliver the very thing that Northern Ireland wants: safety and security within the United Kingdom of Great Britain and Northern Ireland. That is its purpose and that is, principally, why we are here tonight. I am tempted to quote from Clint Eastwood, but the only quotes I could come up with are:

“Do you feel lucky, punk?”


and “Make my day.” I am not sure either one is particularly relevant.

In conclusion, the purpose of this is to ensure that Northern Ireland is safe and secure as we move forward and is in such a place that the protocol will function in its entirety. Equally, and most importantly—it is a genuine pleasure to say this—there is now a restored Executive and an Assembly where these matters should be discussed and whose voices must be heard and heeded. In the year ahead, we commit to ensuring that Northern Ireland is a full component part of the debate and discussion on the issues of Brexit. That is something which I have not been able to say for a very long time.

On that basis, I cannot support the amendments as they have been tabled. I understand where they have come from, but I am afraid I cannot give comfort in that regard. However, I am committing to set out exactly why we believe these powers are necessary in the area of Northern Ireland and why they are there. I hope that, on that basis, the noble Baroness will recognise where I am coming from on these matters.

[Baroness Hayter of Kentish Town]

I am afraid that that does not answer the points noble Lords have made. It is not so much that the powers are needed for Northern Ireland, but there should be restrictions on them. I am sorry, because the Minister is normally brilliant at the Dispatch Box and very well briefed. However, had he read Amendment 15 he would have seen what we were trying to write in by restricting those powers, such as not undermining the Government of Wales Act. He would have understood that we were not questioning that some of the powers will be needed for Northern Ireland—we will come to that in a different debate—but the way they have been set out in this clause. Unlike Clause 18, which I quoted, Clause 21 does not have the restrictions on those powers that exist in the other clauses in the Bill or, indeed, in the 2018 Act.

Our concern remains. It is good to have a northern voice. Most of us here are Welsh or from the West Country, where we feel this very strongly. The Minister is saying that these powers were not designed to undermine devolution and that the intention is not to use them that way, but that is not good enough. When something is put in an Act of Parliament, it is a power. No matter that it is not intended to be used that way, the power is there. As the noble Baroness, Lady Finlay, said, there is already another way. Although I cannot see that the Government of Wales Act would need to be altered for Northern Ireland, if it does there is a perfectly good way of doing it. Denying the restriction, whether it is new criminal offences or anything like that, which exist for all the other Henry VIII powers, is very hard to substantiate, simply because it is to do with Northern Ireland. Not accepting that the other devolution settlements should be in any way accessible to these powers is unsatisfactory. As other noble Lords have said, even the word “repeal” is like waving a red flag at the way these powers could be used.

Having heard from the noble Lord, Lord Tyler, my noble friend Lord Howarth, the noble Baroness, Lady Finlay, and the noble and learned Lord, Lord Thomas, I hope that the Minister might look again at the wording of these amendments and understand why we have real worries about them. Perhaps he would be willing to meet before Report. Otherwise, it will be necessary to try to circumvent these powers in a way that happens elsewhere, but not in relation to the Northern Ireland protocol. I leave the Minister with that thought and beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Property Agents: Registration

Baroness Hayter of Kentish Town Excerpts

Wednesday 18th October 2017 Lords Chamber

[Lord Bourne of Aberystwyth]

I thank the noble Lord for his customary perception on the importance of looking at this whole area. He is right to say that there are many facets to this—including the social rental issue, which we are looking at separately, and on which there will be a Green Paper. I accept that action in relation to the private rented sector has been done in a somewhat piecemeal way, but it is an important part of the debate. The point has been made, but it is worth restating, that the vast majority of agents and landlords are very good, just as there are very good tenants. To put it in perspective, we are dealing with a minority, but that does not mean that it is not important. I accept what the noble Lord says about the broader issues but, believe me, within the department many considerations are bubbling away. There is an active discussion about what we do next—and there is an awful lot to do—because there is the accumulated problem of a lack of housebuilding and, in all honesty, perhaps a lack of attention on some of the issues in the private and social rented sectors.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am pleased to see the noble Baroness, Lady Hanham, in her place. We welcome what the Government are doing now because at the time of the Enterprise and Regulatory Reform Bill an amendment of ours was passed in this House to provide that letting agents should be regulated and be members of a redress scheme. The noble Baroness persuaded Ministers in the other place to accept part of the amendment, the element that provided for a redress scheme. We therefore welcome, somewhat belatedly, that the Government have come to the second part, which is that letting agents should also be licensed in some way.

My questions concern something that we got slightly wrong with the redress scheme. We included managing agents, but we now discover that management companies are not covered. It would be useful to know whether the new proposals now being discussed, which mention managing agents, will also cover property managing companies, particularly on long-lease properties. That is my specific question.

Perhaps I may repeat what I think was said at the end. I know that the Association of Residential Letting Agents and the Association of Residential Managing Agents, the voluntary professional associations, will welcome this move. It is something that they have long asked for, so they will be pleased that those who are not properly qualified and trained, and thus create a bad reputation for the sector, will now have to be included on any register.

[Lord Bourne of Aberystwyth]

I thank the noble Baroness, who I know understands the consumer sector and certainly knows this area well. I am grateful for her constructive contribution. I had not spotted that my noble friend Lady Hanham is in her place. It is a great pleasure to see her and I fully acknowledge the massive role that she has played in this matter.

On the point about management companies, the noble Baroness is right. I know something about company law and how companies are often used as a way of circumventing, sometimes intentionally and, in fairness, sometimes accidentally, obligations and occasionally rights that are bestowed. That should not be happening, so I am happy to undertake that we will look at how to ensure that it does not in this area. I also reiterate her point about the sector’s welcome for this development —indeed, the welcome it has already had. I will be getting them on to the noble Lord, Lord Kennedy, to make sure that some of that enthusiasm rubs off. It is important that we move forward together in this area.

Localism Bill

Baroness Hayter of Kentish Town Excerpts

Monday 31st October 2011 Lords Chamber

[Baroness Hanham]

My Lords, our reforms to the complaints system for social housing are designed to promote the resolution of complaints as far as possible at the most local level, and to encourage a system where ideally the ombudsman is brought in only where local resolution does not prove possible. At Report, amendments were tabled by several noble Lords that would have modified our proposals by introducing a so-called dual-track approach to the process for making complaints to the Housing Ombudsman. As I made clear to the House, the Government’s view is that this would fail to deliver a sufficiently localist approach.

The noble Lords, Lord Greaves and Lord Tope, proposed that a compromise should be considered. They recognised the value of local complaint resolution but were concerned that having gone through the local route tenants must ultimately be able to secure redress where they receive a poor service.

In the light of these most helpful observations, I agreed to take this issue away to see what more could be done to ensure that our provisions were sufficiently flexible.

With Amendment 58, the Government are now proposing a way forward that retains the localist approach but, in specified circumstances, allows the tenant direct access to the ombudsman. We hope that this gives assurance to noble Lords that we have acted upon their concerns through allowing a degree of flexibility into our proposals that will be of further benefit to the tenant.

Under these proposals, tenants will retain the option to go directly to the Housing Ombudsman if eight weeks have elapsed since the end of the landlord’s internal complaints process, or if a local representative explicitly declines to refer the complaint to the ombudsman or agrees that the tenant may approach the ombudsman directly.

The eight-week exception would assist tenants in cases where, for example, the local representative simply did not respond to their complaint. We propose that the time period for this condition would begin at the end of the landlord’s complaints procedure, not when the tenant first approached a local representative. This is so that a clear audit trail exists should the case eventually go to the ombudsman. Starting the clock at this point will make the system straightforward and minimise burdens on tenants.

The second exception is designed to address the concern that a local representative could simply prevent a tenant securing redress by refusing to refer the complaint to the ombudsman, despite the fact that the tenant had attempted to resolve the complaint locally. In most cases, we would expect a local representative to deal with the case or to refer it to the ombudsman, but we recognise that there may be occasions, such as where there is a conflict of interest, where it would be preferable for tenants to have direct access to the ombudsman. For this reason, we wish to provide that a designated person may agree that a complainant can take their complaint to the ombudsman directly.

Amendment 60 tabled by the noble Baroness, Lady Hayter, would alter the first of our proposed exceptions by providing that tenants may access the ombudsman directly after six weeks have elapsed. I shall let her speak to her amendment before responding to it. In the mean time, I beg to move Amendment 57.

[Baroness Hayter of Kentish Town]

My Lords, I wish to speak to Amendment 60 and, in doing so, I welcome enormously the amendments tabled by the Minister on behalf of the Government. I warmly welcome what she has put forward concerning the preference for having things dealt with, if at all possible, locally and as soon as possible. If it does not do his future career a lot of harm, perhaps I may associate the noble Lord, Lord Newton of Braintree, with the thanks to the Government for moving on this. He cannot be in his place tonight but I am afraid that the two of us are at one in thanking the Government, which I think puts us both in very bad odour.

What the Government have done has been welcomed very widely. I know that the British and Irish Ombudsman Association has supported this final retention of a citizen’s right to direct access. Similarly, the National Housing Federation supports the line which enables MPs and councillors to be involved as the first route at the discretion of the complainant but allows the fallback position. Likewise, the Law Commission prefers a system where the complaints can go either through a local representative or to an ombudsman. I hope that the Government know that tenants are similarly very happy with the new amendments, under which they can either deal directly with their councillor or go to the ombudsman. The organisation Which? similarly prefers the choice of the local route but, if not, then the fallback position if for whatever reason the complainant does not want to involve their MP or councillor. As the Minister said, the reasons for that could well be a conflict of interest: the councillor may be the provider; the MP may already have heard the case in their surgery; or the MP may know the local council official involved. The only other reason that has been mentioned is that there could be a threat to the tenant’s privacy where there are issues that they would perhaps not want to share with an elected official. The only other point when somebody may want to go to the ombudsman, albeit after the delay, would be when an elected representative perhaps would be rarely accustomed to awarding redress and would not have the authority to enforce any award.

The way in which this has been tabled by the Government is to be greatly welcomed. It clarifies the current position of the Housing Ombudsman because the scheme requires complainants to have completed any internal complaints procedure with their own provider before going to the ombudsman. Only in very exceptional circumstances, such as oppression or something like unreasonable delay, would the Housing Ombudsman take a case before it had been through the provider’s in-house procedure. That is also helpful in the wording of the Government’s amendments. All the other organisations similarly take that line.

I am delighted that the wording allows local access or the fall back after eight weeks. It is only that that brings up my very small amendment. I have no difficulties with the idea of some delay after the internal procedure is over for the complainant to take stock and consider whether a complaint to the Housing Ombudsman is still justified, having heard the reasons for being turned down by the in-house procedure. Two months seems a little long, especially as the internal procedure that they would have already gone through could also have been a bit lengthy. My amendment would simply shave a fortnight off those eight weeks. The Government have moved a long way on this amendment and I hope they will go a little bit further. An extra 14 days would make this a particularly good final answer to the original amendment.

[Lord Tope]

My Lords, as the noble Baroness has just said, the Minister has moved a long way since we last debated this. We all accepted the strong desirability of resolving these matters locally whenever possible, but we realised during or even before that debate that it had an unintended consequence of giving the designated person the right of veto. I do not think that that was what the Government intended and I am pleased that they have recognised that, and that it has been removed. Once again, I thank the Minister for not only listening but for acting. At this late hour at this very late stage of the Bill I do not propose to debate further whether it should be six or eight weeks. I am just glad that we have got to where we have.