European Union (Withdrawal) Bill

Debate between Baroness McIntosh of Pickering and Lord Goldsmith

Wednesday 14th March 2018 Lords Chamber

[Baroness McIntosh of Pickering]

My Lords, I support the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge, in this regard. My question goes to the comment of the noble Lord, Lord Lisvane, about scrutiny. Of course, he is the living expert on the level of scrutiny that an Act of Parliament enjoys in each House at every stage of parliamentary procedure. If the Government are seeking by regulation to achieve the equivalent of what has previously been achieved by an Act of Parliament, do the Minister and the Government have in mind what the level of scrutiny will be? Will it be the usual statutory instrument procedure, and will it be by affirmative or negative resolution?

[Lord Goldsmith (Lab)]

My Lords, we strongly support these amendments, Amendment 153 having been co-signed by my noble friend Lady Hayter. It would remove Clause 9(2) from the Bill entirely, and the more limited Amendment 154 would remove what are probably the most damaging words from it but not the whole of it.

This is the widest of the Henry VIII powers that the Government want to take in this Bill. It would permit regulations to do anything that an Act of Parliament could do, including even amending this Bill, when an Act. Those are the words that Amendment 154, in particular, focuses on. Therefore, as has been said, we could find that, after lengthy debate and a vote in this House and in the other place, the resulting provisions so painfully and lengthily resolved could simply be removed by the decision of a Minister.

The noble Lord, Lord Lisvane, gave some examples and the noble Lord, Lord Beith, gave more dramatic examples, but the critical question is: why is this needed? First, as the noble Lord, Lord Lisvane, rightly said, nobody should be misled by the words that are used. The word “modifying” might suggest at first blush that the provision is doing something less substantial, but in fact the definition of “modify” in Clause 14(1) makes it clear that it,

“includes amend, repeal or revoke”,

so the modification in question could take whole provisions away altogether.

The second point to underline—again, the noble Lords, Lord Lisvane and Lord Bilimoria, made this clear—is that what matters is not good intentions expressed at the moment by the Ministers in charge but what the Act actually provides. As parliamentarians, we would be failing in our job of scrutinising and controlling the Executive if we left Ministers with untrammelled powers simply on the basis that we would expect or hope that they would use them in a particular way or on the basis of them saying that they would not intend to use them in a particular way. That is not what we should do at all.

Therefore, it is no wonder that your Lordships’ Delegated Powers and Regulatory Reform Committee, in paragraph 23 of its report, described this power as “wholly unacceptable”, and that the Constitution Committee, in paragraph 197 of its report, described it as one for which it “cannot see any justification”. I know that the Government’s argument will be that they do not know what will be in the withdrawal agreement and therefore they do not yet know what changes will need to be made, including to primary legislation—for example, to the Immigration Act. However, there is neither a need to take these powers, nor is it right to do so, for two reasons.

First, it is clear that our withdrawal must be subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal—that is what Clause 9 will provide. So if the withdrawal agreement requires changes which cannot be effected by other powers—such as the power to deal with deficiencies under Clause 7—such changes can be incorporated into the statute approving the terms of withdrawal. Not only can such changes be included in that statute; they ought to be, because then they could be subject to a degree of parliamentary scrutiny. I agree with what the noble Lord, Lord Lisvane, and the noble Baroness, Lady McIntosh, said about the significance of scrutiny in this context. They could be subject to the degree of parliamentary scrutiny and approval which important changes to primary legislation should require.

The Delegated Powers Committee noted:

“The Government propose to take very wide-ranging secondary and tertiary legislative powers in the Bill, which would appear to cover every possible need to deal with failures and deficiencies in retained EU law as we leave the EU. Given the sheer width of these powers, it is difficult to conceive of areas where the proposed powers are not sufficient. However if the final withdrawal agreement includes something that is not capable of being legislated for under the regulation-making powers of the European Union (Withdrawal) Act, then Parliament should legislate rather than Ministers. Parliament is capable—


we all have experience of this—

“of passing urgent Bills with extraordinary expedition”.

Paragraph 197 of the Constitution Committee’s report, to similar effect, said

“As the clause 9 power cannot be used until a further Act has been passed—likely to be the withdrawal and implementation bill”—


which is what the Minister told us in a previous debate—

“we cannot see any justification for the inclusion of the power in this Bill. Parliament will be better placed to scrutinise the appropriateness of such a power, and the restrictions and safeguards it might require, when the terms of the withdrawal agreement are known”.

The committee recommended removal of that clause.

That is the answer I give to the noble and learned Lord, Lord Mackay of Clashfern. I hope he knows the high regard in which I and the House hold him, but in circumstances where there is to be an Act, where there are other powers to remove and make changes, this particular wide, untrammelled power is not necessary.

In addition to the strong constitutional reasons why this extraordinary power should not be left to be used by one of the many Ministers who have the power to issue regulations is the reason that it is remarkably widely drawn. We have debated in previous amendments that the formula used here—such provision as the Minister considers appropriate—suffers from the defect that it is both subjective and open ended. As I ventured to advise your Lordships in a previous debate, speaking from my own experience as a former Minister, adviser to Ministers and a practising lawyer, the exercise of a power so broadly expressed would be difficult, if not impossible, to challenge. The noble Lord, Lord Wilson of Dinton, put it memorably in the debate last week as another example of Ministers being given plump pillows of legal protection. That is an additional reason to object to this provision.

However, the primary constitutional reason that I have tried to identify still remains. I hope therefore that, in addition to answering the questions that have been put—including the question put by the noble Lord, Lord Beith, and others as to why the power is needed, and the question raised by the noble and learned Lord, Lord Hope of Craighead, as to the application of the Sewel convention—the Minister, when he replies, will indicate why the Government, in these circumstances, consider the power necessary; and whether they can now see, in the light of the changes made to Clause 9 and the other powers that exist, that they do not need it.